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[ { "docid": "23705581", "title": "", "text": "a sovereign act and, therefore, any conveyance without the sovereign’s consent was invalid. See County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 233-34, 245, 105 S.Ct. 1245, 1250-51, 1257, 84 L.Ed.2d 169 (1985); see also The Cherokee Trust Funds, 117 U.S. 288, 294, 6 S.Ct. 718, 719, 29 L.Ed. 880 (1886). Congress’ dual purposes were “to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties,” Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 555, 4 L.Ed.2d 584 (1960), and to prevent Indian unrest over encroachment by white settlers on Indian lands, Mohegan Tribe, 638 F.2d at 621-22. The Act created a trust relationship between the federal government and American Indian tribes with respect to tribal lands covered by the Act. See Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 379 (1st Cir.1975) (Passamaquoddy). To establish a prima facie case based on a violation of the Act, a plaintiff must show that (1) it is an Indian tribe, (2) the land is tribal land, (3) the United States has never consented to or approved the alienation of this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned. See Catawba Indian Tribe v. South Carolina, 718 F.2d 1291, 1295 (4th Cir.1983), aff'd, 740 F.2d 305 (4th Cir.1984) (en banc), rev’d on other grounds, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986); Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979) (per curiam). B. The Regulatory History In 1832 Congress established the position of Commissioner of Indian Affairs (currently within the Department of the Interior) and delegated to the Commissioner the authority to manage all Indian affairs. See Act of July 9, 1832, ch. 174, § 1, 4 Stat. 564 (codified at 25 U.S.C. §§ 1, 2 (1988)). Two years later Congress granted the President authority to “prescribe such rules and regulations as he may think fit, for carrying into effect the various provisions of [any act] relating to Indian" } ]

[ { "docid": "6468587", "title": "", "text": "assert INA rights on their own behalf. James v. Watt, 716 F.2d 71 at 72 (1st Cir.1983) (emphasis in original). Indeed, because the Nonintercourse Act protects only tribal land rights, and not individual Indian land rights, the first element of a prima facie case based on a violation of the Act is a showing by the plaintiff that “it is or represents an Indian ‘tribe’ within the meaning of the Act.” Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979); Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. 527, 537 (N.D.N.Y.1977). In instances where plaintiffs have been unable to allege or prove tribal status, their claims have been dismissed on the ground that they lacked standing. See Epps v. Andrus, supra; Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.1979) (“Mashpee I”). Plaintiffs contend that Epps and Mash-pee I involved the question of whether the Nonintercourse Act protects individually held land; that although the First Circuit used the term “standing”, it actually meant that the complaints failed to state a claim because only tribal lands are protected by the Act. Thus, in plaintiffs’ view, neither case may be cited for the proposition that individual Indians lack standing to assert a claim that tribal land was alienated in violation of the Nonintercourse Act. This court does not read Epps or Mash-pee I that narrowly. In Epps, plaintiffs initially brought suit as individual descendants of one family of Chappaquiddick Indians, to recover a specific parcel of land that had been allocated to that family when the Chappaquiddick reservation was partitioned in the early 19th century. Plaintiffs claimed that both the partitioning and the subsequent alienation of the parcel were invalid under the Nonintercourse Act. However, in an amended complaint, plaintiffs asserted a class action on behalf of other individual heirs and successors of the tribe. Id. at 917. Thus, the claim, as amended, embraced the full measure of individual rights in the tribal land. The First Circuit affirmed the dismissal of the suit, on the grounds, inter alia, that plaintiffs lacked standing: As the courts have" }, { "docid": "8520959", "title": "", "text": "The language of the 1741 land patent suggests otherwise. In interpreting grants of land by the government, intent of the government is a prominent consideration, and the language of the grants is to be strictly construed. 3 Norman J. Singer, Sutherland Statutory Construction § 64:7 (6th ed.2000). The language of the 1741 patent, quoted earlier, unambiguously conveyed land to an individual- — Chief Tatamy and his heirs. It did not convey to the tribe. It is not necessary to look beyond the four corners of the patent, but we nonetheless note that the minutes of the Provincial Council, also quoted above, explicitly confirm that the Proprietors intended the land to go to Chief Tatamy alone, and not “any other of the Delaware Indians.” The Delaware Nation presses the argument that, even if the Proprietors did not intend in 1741 to grant the land to the tribe as a collective, this is how the tribe received the grant because “the Lenni Le-nape did not recognize the concept of individual ownership of land.” This argu ment is unpersuasive. The subjective state of mind of the grantee is not a consideration in interpreting public land grants. Moreover, and quite notably, the Complaint nowhere clearly alleges that Chief Tatamy intended to receive the 1741 land patent in his capacity as representative of the tribe. None of the canons of construction that the parties urge the court to apply (e.g., construing agreements with Indians “in the sense in which they would naturally be understood by the Indians,” resolving ambiguities in public land grants in favor of the government, etc.) are applicable because the terms of the land ■ patent are completely unambiguous. The Delaware Nation fails to state a claim under the Nonintercourse Act because the land in question is not “tribal” in any sense of that word. Conclusion For the foregoing reasons, we find that the Delaware Nation’s aboriginal rights to Tatamy’s Place were extinguished in 1737 and that, later, fee title to the land was granted to Chief Tatamy — not to the tribe as a collectivity. We will thus affirm the District" }, { "docid": "8520960", "title": "", "text": "unpersuasive. The subjective state of mind of the grantee is not a consideration in interpreting public land grants. Moreover, and quite notably, the Complaint nowhere clearly alleges that Chief Tatamy intended to receive the 1741 land patent in his capacity as representative of the tribe. None of the canons of construction that the parties urge the court to apply (e.g., construing agreements with Indians “in the sense in which they would naturally be understood by the Indians,” resolving ambiguities in public land grants in favor of the government, etc.) are applicable because the terms of the land ■ patent are completely unambiguous. The Delaware Nation fails to state a claim under the Nonintercourse Act because the land in question is not “tribal” in any sense of that word. Conclusion For the foregoing reasons, we find that the Delaware Nation’s aboriginal rights to Tatamy’s Place were extinguished in 1737 and that, later, fee title to the land was granted to Chief Tatamy — not to the tribe as a collectivity. We will thus affirm the District Court’s dismissal of the Delaware Nation’s Complaint. . For purposes of this appeal, the Lenni Le-nape and the Delaware Nation are synonymous. . Courts may consider matters of public record, exhibits attached to the complaint, and undisputedly authentic documents attached to a motion to dismiss. See Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir.1993). . A proprietor is \"[o]ne who has the legal right or exclusive title to property, business, etc.” Black's Law Dictionary 1220 (6th ed.1990). . Following a stroke in 1712, William Penn's second wife became the Proprietor of the province until her death in 1727. Penn’s sons and grandsons then became the Proprietors of the territory. . Thomas Penn falsely represented to the Len-ni Lenape that some fifty years earlier the Lenni Lenape Chiefs had signed a document providing that land, which could be covered in a walk of one-and-one-half days, was to be deeded to the Penns. Unbeknownst to the Lenni Lenape, who had envisioned a leisurely walk through the tangled Pennsylvania forests, Thomas" }, { "docid": "8520965", "title": "", "text": "448, 504 (W.D.N.Y.2002). Seneca Nation is in no way controlling precedent. Nor, indeed, does it help the Delaware Nation because it does not challenge the nonjusticiable nature of the manner in which the sovereign executes a purchase or a treaty with an Indian entity. . The District Court thought the Delaware Nation had argued that the 1738 and 1741 patents \"revived” the tribe's aboriginal title. It rejected that argument, holding that aboriginal title, \"once having been extinguished, could not be revived, even if title was thereafter acquired by those who originally possessed that” title. District Court Opinion at 28 (citing Tuscarora Nation of Indians v. Power Authority of the State of New York, 164 F.Supp. 107 (W.D.N.Y.1958)). The Delaware Nation clarifies in its brief that it \"never asserted that ... its rights were ... revived by way of the patent grants to Chief Tatamy,” but rather that the tribe has \"two parallel interests” in Tatamy's Place: aboriginal title and fee title. Brief at 37. . See, e.g., Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 115 n. 5, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998) (\"This Court has never determined whether the Indian Nonintercourse Act ... applies to land that has been rendered alienable by Congress,” i.e., land the aboriginal title to which the sovereign has extinguished, \"and later reacquired by an Indian tribe.”). . To demonstrate that conveyances to Indian tribes as collectives were common, the tribe cites Mashpee Tribe v. Watt, 542 F.Supp. 797, 805 (D.Ma.1982). That case, however, notes that the practice of a tribe’s chief or head man granting land to a non-Indian as a representative of his tribe was common. The tribe points to no case in which land was granted to an individual Indian in fee simple with the unexpressed intention that that Indian's entire tribe receive the conveyance. Moreover, there are many treaties from a later period in which the United States, intending to grant land in fee simple to an Indian tribe, did so by designating the tribe explicitly as the grantee, which the Proprietors did not" }, { "docid": "13826945", "title": "", "text": "BREYER, Circuit Judge. The plaintiffs in this case are individual Indians who claim an interest in land on Gay Head Peninsula, Martha’s Vineyard, Massachusetts. In order to prevail, they must upset the present landowners’ chain of title by showing that certain conveyances made many years ago by the Gay Head Indian tribe (or by individual Indians) are invalid. The district court granted summary judgment against the plaintiffs, from which they appeal. We find that the district court was correct. A The plaintiffs’ initial argument is based upon the Indian Nonintercourse Act (the INA) — a federal statute that provides: No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. 25 U.S.C. § 177. The plaintiffs argue that the relevant conveyances were not made pursuant to a “treaty or convention,” that Massachusetts law could not authorize what the INA forbade, and that the conveyances are therefore invalid. The district court correctly rejected this argument, however, on the ground that the plaintiffs sued as individual Indians. The plaintiffs did not seek to represent the tribe, nor did they name the tribe as a plaintiff in the suit. We are not certain why they did not do so. But we know that the Gay Head Indian tribal government earlier filed a related suit by, and on behalf of, the Gay Head tribe; and we believe that plaintiff Indians here are dissidents who disapprove of the way that suit is being handled. This litigation strategy apparently played a role in the framing of their complaint. Regardless, this court has held that the INA was designed to protect the land rights only of tribes; that the INA therefore granted a cause of action to tribes; and that individual Indians could not assert INA rights on their own behalf. See Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575," }, { "docid": "8520956", "title": "", "text": "314 U.S. at 354, 62 S.Ct. 248. The District Court held that the Delaware Nation’s Complaint made it clear that Thomas Penn executed the Walking Purchase intending to take from the Delaware Nation its claim to land in Pennsylvania, including Tatamy’s Place. The Delaware Nation, 2004 U.S. Dist. Lexis 24178, *28-9. The Complaint notes that Thomas Penn, in order to pay creditors, needed to sell tribal land. To acquire such land, in the first place Thomas Penn executed the Walking Purchase. Complaint at ¶ 38. To now argue that Thomas Penn did not intend to extinguish aboriginal title to Tata-my’s Place, which is indisputably land covered by the Walking Purchase, contradicts the very allegations of the Complaint. Put another way, there are no facts or allegations in the public record or in the Complaint which could be used to question Thomas Penn’s intention to extinguish aboriginal rights in Tatamy’s Place. Moreover, if the Delaware Nation still retained aboriginal title to Tatamy’s Place, there would have been no need to grant Tatamy the 1741 patent in fee. B. Chief Tatamy’s Land Patents The Delaware Nation argues that, even if Thomas Penn did extinguish its aboriginal title to Tatamy’s Place, it may nonetheless pursue its claim under the Nonintercourse Act because it holds fee title to Tatamy’s Place. It acquired this fee title, the tribe explains, when the Proprietors granted Tatamy’s Place to Chief Tatamy because the Chief accepted the title not in his individual capacity, but as a representative of the tribe. Even assuming that the Nonintercourse Act applies to land reacquired by an Indian tribe in fee after the sovereign extinguished -its aboriginal rights to the land — an issue which appears to be unsettled, but which is not necessary for us to decide here — the Delaware Nation’s claim must fail because it is clear that the Proprietors granted Tata-my’s Place to Chief Tatamy in his individual capacity, and not as an agent of the tribe. As noted earlier, the Nonintercourse Act provides, in pertinent part: No purchase, grant, lease or other conveyance of lands, or of any title" }, { "docid": "8520950", "title": "", "text": "recovery. First, the Delaware Nation contends that, because Tatamy’s Place was taken by deception via the Walking Purchase, the tribe’s aboriginal rights were never validly extinguished. As such, the Delaware Nation has a right of continued occupancy and use consistent with the doctrine of discovery. Second, the Delaware Nation, as the successor in interest to Chief Tatamy, claims fee title to Tatamy’s Place based on the land grants from the Proprietors. The Delaware Nation further asserts that the subsequent alienation of fee title from Chief Tatamy violated the Trade and Intercourse Act of 1799. 1 Stat. 743, 746 (1799). On November 30, 2004, the District Court dismissed the Complaint in its entirety for failure to state a cause of action. The Delaware Nation, 2004 U.S. Dist. Lexis 24178; Fed. R. Civ. Proc. 12(b)(6). The District Court, having found that the Delaware Nation admitted that Thomas Penn had the sovereign authority to take Tatamy’s Place, ruled that Thomas Penn’s method of acquisition, i.e. fraud, was legally irrelevant. Moreover, the District Court found that the Nonintercourse Act was inapplicable in this case because Tatamy’s Place did not represent “tribal land.” The Delaware Nation appealed. II. Jurisdiction and Standard of Review Our review of the grant of a motion to dismiss is plenary. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir.1994). When considering an appeal from a dismissal of a complaint pursuant to Rule 12(b)(6), we accept as true all well-pled factual allegations. Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir.1997). We examine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002). The District Court exercised jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1362 (“The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.”). The Delaware Nation is recognized" }, { "docid": "1846225", "title": "", "text": "§ 1331. Plaintiffs’ allegations— that they are successors in interest to the treaty signed by the Indians of the Village of St. Regis, and that their possessory rights and interests have never been extinguished — sufficiently assert a controversy arising under the Constitution, laws or treaties of the United States and, thus, present a federal question for this court’s review. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974) (“Given the nature of and source of the posses-sory rights of Indian tribes to their aboriginal lands, particularly when confirmed by treaty, it is plain that the complaint asserted a controversy arising under the Constitution, laws or treaties of the United States within the meaning of both § 1331 and § 1362.”). III. Failure to State a Claim As stated earlier, the Nonintercourse Act provides in relevant part that: No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution ... under the authority of the United States. 25 U.S.C.A. § 177 (1983). In order to establish a prima facie case based on a violation of the Act, “a plaintiff must show that (1) it is an Indian tribe, (2) the land is tribal land, (3) the United States has never consented to or approved the alienation of the this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned.” Golden Hill Paugussett Tribe of Indians, 39 F.3d at 58 (citing Catawba Indian Tribe v. South Carolina, 718 F.2d 1291, 1295 (4th Cir.1983), aff'd, 740 F.2d 305 (4th Cir.1984) (en banc), rev’d on other grounds, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986)); see also Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. 527 (N.D.N.Y.1977), affd, 719 F.2d 525 (2d Cir.1983), aff'd in part, rev’d in part," }, { "docid": "8520967", "title": "", "text": "do here. See Cohen's Handbook of Federal Indian Law § 9.4, footnotes 22-26 and accompanying text (quoting treaties that grant land in fee simple to, for example, \"the Wyandotts, and to their heirs forever” and \"to the Creek nation of Indians ... and the right thus guaranteed by the United States shall be continued to said tribe of Indians, so long as they shall exist as a nation”). . Paragraph 10 of the Complaint refers generally to communal ownership of land by the Delaware Nation, but the allegations of succeeding paragraphs — particularly paragraphs 42, 43, 44 and 45 — all speak in terms of an individual grantee. For example, 45 states that \"Chief Tatamy’s fee simple ownership of Tatamy’s Place is documented and indisputable. Neither he nor his heirs ever divested their interest in Tatamy’s Place.” . In addition, Judge Roth would hold that the Nonintercourse Act claim would fail even had the land in question been tribal because the Delaware Nation failed to identify a specific land conveyance that violated the Act or to allege that the gap in the chain of title postdates the Nonintercourse Act's enactment." }, { "docid": "844433", "title": "", "text": "Act states, in relevant part: No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. The purpose of this statute has been declared to be “to prevent unfair, improvident or improper disposition by Indians of land owned or possessed by them to other parties. . . .” Federal Power Com mission v. Tuscarora Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 555, 4 L.Ed.2d 584 (1960). This court has subject matter jurisdiction of this claim under 28 U.S.C. § 1331. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). The motion to dismiss rests on three asserted grounds: (1) that by failing to allege official recognition, the Tribe has failed to state a claim upon which relief may be granted, Fed.R.Civ.P. 12(b)(6); (2) that the Tribe has failed to join the United States as an indispensable party, Fed.R.Civ.P. 12(b)(7) and 19; and (3) that the Tribe has failed to join the Commonwealth of Massachusetts as an indispensable party, Fed.R. Civ.P. 12(b)(7) and 19. Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) The elements of a prima facie case demonstrating that § 177 covers the land in question have been set forth in Narragansett Tribe of Indians v. So. R.I. Land Develop., 418 F.Supp. 798 (D.R.I.1976) (hereinafter, Narragansett), as follows: . plaintiff must show that: 1) it is or represents an Indian “tribe” within the meaning of the Act; 2) the parcels of land at issue herein are covered by the Act as tribal land; 3) the United States has never consented to the alienation of the tribal land; 4) the trust relationship between the United States and the tribe, which is established by coverage of the Act, has never been terminated or abandoned. 418 F.Supp. at 803; see Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), aff’g, 388" }, { "docid": "23705582", "title": "", "text": "Indian tribe, (2) the land is tribal land, (3) the United States has never consented to or approved the alienation of this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned. See Catawba Indian Tribe v. South Carolina, 718 F.2d 1291, 1295 (4th Cir.1983), aff'd, 740 F.2d 305 (4th Cir.1984) (en banc), rev’d on other grounds, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986); Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979) (per curiam). B. The Regulatory History In 1832 Congress established the position of Commissioner of Indian Affairs (currently within the Department of the Interior) and delegated to the Commissioner the authority to manage all Indian affairs. See Act of July 9, 1832, ch. 174, § 1, 4 Stat. 564 (codified at 25 U.S.C. §§ 1, 2 (1988)). Two years later Congress granted the President authority to “prescribe such rules and regulations as he may think fit, for carrying into effect the various provisions of [any act] relating to Indian affairs_” Act of June 30,1834, ch. 162, § 17, 4 Stat. 735, 738 (codified as amended at 25 U.S.C. § 9 (1988)). At the same time Congress estabhshed the Department of Indian Affairs, predecessor to the BIA. See Act of June 30, 1834, ch. 162, 4 Stat. 735 (codified as amended at 25 U.S.C. § 1 et seq. (1988)). Between 1834 and 1871 Congress continued to deal directly by means of its treaty-making power with American Indian tribes, but in 1871 recognition by treaty ended as Congress terminated its treaty-making authority. See Act of March 3, 1871, ch. 120, § 1, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71 (1988)). Numerous reasons were advanced for termination of Indian pohcy based on treaty negotiations. After the War of 1812 the military importance of alhances with Indian tribes was diminished. The movement to end treaty making gained strength as a result of alhances between some of the southern Indian tribes and the Confederacy. The final decision to end treaty making resulted from a movement by" }, { "docid": "5570030", "title": "", "text": "asserts only one ground for its claim of superior title: that each of the defendants traces his title back to an unlawful alienation of tribal land in violation of 25 U.S.C. § 177, popularly known as the Indian Nonintereourse Act (“the Act”). Plaintiff concedes that unless it is able to establish that the Act’s terms cover the land in question, it has no right to recovery on any other basis. On the other hand, it contends that if it is able to meet is prima facie burden of establishing the Act’s coverage, there are no affirmative defenses which can defeat its claim. Our first task is to determine the proof necessary for plaintiff to establish a prima facie case. This task has been greatly simplified by the First Circuit’s analysis of the Act in Joint Tribal Council of the Passama-quoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), aff’g, 388 F.Supp. 649 (D.Me. 1975) (hereinafter Passamaquoddy), which was decided after the parties submitted their briefs. In Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (hereinafter Oneida), the United States Supreme Court held that the Oneida Indian Nation had stated a federal cause of action cognizable under 28 U.S.C. § 1331 in claiming a right to possession of certain lands which it alleged had been ceded to the State of New York “without the consent of the United States and hence ineffective to terminate the Indians’ right to possession under,” inter alia, the Nonin- tercourse Act. Id. at 664-665, 94 S.Ct. at 776. The Act, 25 U.S.C. § 177, provides as follows: “No purchase, grant, lease of other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or" }, { "docid": "8520966", "title": "", "text": "Chippewa Indians, 524 U.S. 103, 115 n. 5, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998) (\"This Court has never determined whether the Indian Nonintercourse Act ... applies to land that has been rendered alienable by Congress,” i.e., land the aboriginal title to which the sovereign has extinguished, \"and later reacquired by an Indian tribe.”). . To demonstrate that conveyances to Indian tribes as collectives were common, the tribe cites Mashpee Tribe v. Watt, 542 F.Supp. 797, 805 (D.Ma.1982). That case, however, notes that the practice of a tribe’s chief or head man granting land to a non-Indian as a representative of his tribe was common. The tribe points to no case in which land was granted to an individual Indian in fee simple with the unexpressed intention that that Indian's entire tribe receive the conveyance. Moreover, there are many treaties from a later period in which the United States, intending to grant land in fee simple to an Indian tribe, did so by designating the tribe explicitly as the grantee, which the Proprietors did not do here. See Cohen's Handbook of Federal Indian Law § 9.4, footnotes 22-26 and accompanying text (quoting treaties that grant land in fee simple to, for example, \"the Wyandotts, and to their heirs forever” and \"to the Creek nation of Indians ... and the right thus guaranteed by the United States shall be continued to said tribe of Indians, so long as they shall exist as a nation”). . Paragraph 10 of the Complaint refers generally to communal ownership of land by the Delaware Nation, but the allegations of succeeding paragraphs — particularly paragraphs 42, 43, 44 and 45 — all speak in terms of an individual grantee. For example, 45 states that \"Chief Tatamy’s fee simple ownership of Tatamy’s Place is documented and indisputable. Neither he nor his heirs ever divested their interest in Tatamy’s Place.” . In addition, Judge Roth would hold that the Nonintercourse Act claim would fail even had the land in question been tribal because the Delaware Nation failed to identify a specific land conveyance that violated the Act or" }, { "docid": "21011527", "title": "", "text": "of Oneida, 434 F.Supp. 527 (N.D. N.Y.1977), and the United States might owe plaintiffs for a breach of trust. Cf., United States v. Oneida Nation of New York, 201 Ct.Cl. 546, 477 F.2d 939 (1973). Plaintiffs’ claims run aground, however, on the requirement of the Non-Intercourse Act as interpreted by the courts that plaintiffs constitute an existing tribe of Indians protected by the Act. 25 U.S.C. § 177 (1976). In order to make out a prima facie case based on a violation of section 177, [P]laintiff must show that: 1) it is or represents an Indian “tribe” within the meaning of the Act; 2) the parcels of land at issue herein are covered by the Act as tribal land; 3) the United States has never consented to the alienation of the tribal land; 4) the trust relationship between the United States and the tribe, which is established by coverage of the Act, has never been terminated or abandoned. Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. 527 (N.D.N. Y.1977) (quoting Mashpee Tribe v. New Seabury Corp., 427 F.Supp. 899, 902 (D.Mass.1977)), aff’d, 592 F.2d 575 (1st Cir. 1979); Narragansett Tribe of Indians v. Southern R.I. Land Develop., 418 F.Supp. 798 (D.R.I.1976). Despite our explicit statement in Mashpee Tribe that the Non-Intercourse Act only covers suits by Indian tribes or nations, 592 F.2d at 581, plaintiffs here brought suit as individual heirs or descendants of one Chappaquiddick family. Nowhere in their complaint do plaintiffs assert that they represent any Indian tribe or nation, or that a Chappaquiddick tribe now exists. Although plaintiffs filed an amended complaint, they did not assert a tribal status claim, and plaintiffs’ counsel conceded at oral argument, the amended complaint only adds a class action for other individual heirs and successors of the tribe. As the courts have stated repeatedly, claims on the part of individual Indians or their representatives are not cognizable in federal courts under the Indian Trade and Non-Intercourse Act. 25 U.S.C. § 177 (1976); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979), aff’g 427 F.Supp." }, { "docid": "8520957", "title": "", "text": "fee. B. Chief Tatamy’s Land Patents The Delaware Nation argues that, even if Thomas Penn did extinguish its aboriginal title to Tatamy’s Place, it may nonetheless pursue its claim under the Nonintercourse Act because it holds fee title to Tatamy’s Place. It acquired this fee title, the tribe explains, when the Proprietors granted Tatamy’s Place to Chief Tatamy because the Chief accepted the title not in his individual capacity, but as a representative of the tribe. Even assuming that the Nonintercourse Act applies to land reacquired by an Indian tribe in fee after the sovereign extinguished -its aboriginal rights to the land — an issue which appears to be unsettled, but which is not necessary for us to decide here — the Delaware Nation’s claim must fail because it is clear that the Proprietors granted Tata-my’s Place to Chief Tatamy in his individual capacity, and not as an agent of the tribe. As noted earlier, the Nonintercourse Act provides, in pertinent part: No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by treaty or convention, entered into, pursuant to the Constitution. 25 U.S.C. § 177. To establish a prima, facie case for violation of the Act, the Delaware Nation is required to allege that (1) it is an Indian tribe, (2) the land in question is tribal land, (3) the sovereign has never consented to or approved the alienation .of this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned. Seneca Nation, 382 F.3d at 258; Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 56 (2d Cir.1994); Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979) (overruled on other grounds). The Delaware Nation claims that the land in question- — Tatamy’s Place — is “tribal land” (element 2) because it holds fee title to the land as a tribe." }, { "docid": "1846226", "title": "", "text": "of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution ... under the authority of the United States. 25 U.S.C.A. § 177 (1983). In order to establish a prima facie case based on a violation of the Act, “a plaintiff must show that (1) it is an Indian tribe, (2) the land is tribal land, (3) the United States has never consented to or approved the alienation of the this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned.” Golden Hill Paugussett Tribe of Indians, 39 F.3d at 58 (citing Catawba Indian Tribe v. South Carolina, 718 F.2d 1291, 1295 (4th Cir.1983), aff'd, 740 F.2d 305 (4th Cir.1984) (en banc), rev’d on other grounds, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986)); see also Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. 527 (N.D.N.Y.1977), affd, 719 F.2d 525 (2d Cir.1983), aff'd in part, rev’d in part, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). Again led by the Municipal defendants, defendants argue that their motions to dismiss must be granted pursuant to Rule 12(b)(6) because the Longhouse and Canadian Band fail to make out a prima facie case under the Nonintercourse Act. Defendants contend that neither tribe can prove the requisite tribal status and, absent tribal status, neither can prove or plead the required trust relationship with the United States. A dismissal pursuant to Rule 12(b)(6) is not warranted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In making this assessment, the court must presume that the allegations contained in the complaint, and all reasonable inferences that can be drawn from them, are true. See Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir.2001) (citing Lee v. Bankers Trust Co., 166" }, { "docid": "8520958", "title": "", "text": "or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by treaty or convention, entered into, pursuant to the Constitution. 25 U.S.C. § 177. To establish a prima, facie case for violation of the Act, the Delaware Nation is required to allege that (1) it is an Indian tribe, (2) the land in question is tribal land, (3) the sovereign has never consented to or approved the alienation .of this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned. Seneca Nation, 382 F.3d at 258; Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 56 (2d Cir.1994); Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979) (overruled on other grounds). The Delaware Nation claims that the land in question- — Tatamy’s Place — is “tribal land” (element 2) because it holds fee title to the land as a tribe. The language of the 1741 land patent suggests otherwise. In interpreting grants of land by the government, intent of the government is a prominent consideration, and the language of the grants is to be strictly construed. 3 Norman J. Singer, Sutherland Statutory Construction § 64:7 (6th ed.2000). The language of the 1741 patent, quoted earlier, unambiguously conveyed land to an individual- — Chief Tatamy and his heirs. It did not convey to the tribe. It is not necessary to look beyond the four corners of the patent, but we nonetheless note that the minutes of the Provincial Council, also quoted above, explicitly confirm that the Proprietors intended the land to go to Chief Tatamy alone, and not “any other of the Delaware Indians.” The Delaware Nation presses the argument that, even if the Proprietors did not intend in 1741 to grant the land to the tribe as a collective, this is how the tribe received the grant because “the Lenni Le-nape did not recognize the concept of individual ownership of land.” This argu ment is" }, { "docid": "21011526", "title": "", "text": "reads: No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution (emphasis added). 25 U.S.C. § 177 (1976). The reservation was purportedly divided among the 17 Chappaquiddick families in 1828 and 1851. Then, in 1869, Massachusetts passed an act which relieved Indians of their legal disabilities and purported to authorize partition and alienation of the Chappaquiddick Indian lands. 1869 Mass. Acts, chpt. 463. See, Mashpee Tribe v. Town of Mashpee, 477 F.Supp. 940 (D.Mass. 1978). Subsequently, plaintiffs’ ancestors did alienate their various shares of the Chappaquiddick lands. Plaintiffs allege that these transfers by their ancestors violated the amended Non-Intercourse Act protecting Indian tribes and nations. If so, the transfers of land would be void, see, Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975); Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. 527 (N.D. N.Y.1977), and the United States might owe plaintiffs for a breach of trust. Cf., United States v. Oneida Nation of New York, 201 Ct.Cl. 546, 477 F.2d 939 (1973). Plaintiffs’ claims run aground, however, on the requirement of the Non-Intercourse Act as interpreted by the courts that plaintiffs constitute an existing tribe of Indians protected by the Act. 25 U.S.C. § 177 (1976). In order to make out a prima facie case based on a violation of section 177, [P]laintiff must show that: 1) it is or represents an Indian “tribe” within the meaning of the Act; 2) the parcels of land at issue herein are covered by the Act as tribal land; 3) the United States has never consented to the alienation of the tribal land; 4) the trust relationship between the United States and the tribe, which is established by coverage of the Act, has never been terminated or abandoned. Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. 527 (N.D.N. Y.1977) (quoting Mashpee" }, { "docid": "14605774", "title": "", "text": "the Indians through treaty, the principal purpose often being to recognize and guarantee the rights of Indians to specified areas of land.... The United States also asserted the primacy of federal law in the first Nonintercourse Act passed in 1790,1 Stat. 137,138, which provided that “no sale of lands made by any Indians ... within the United States, shall be valid to any person ... or to any state ... unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.” This has remained the policy of the United States to this day. (footnote omitted) To establish a prima facie case for a violation of the Nonintercourse Act, the Tribe must prove four elements: (1) that it is or represents an Indian tribe within the meaning of the Nonintercourse Act; (2) that the land in issue is covered by the Nonintercourse Act as tribal land; (3) that the United States has never approved or consented to the alienation of the tribal land; and (4) that the trust relationship between the United States and the tribe, established by coverage of the Nonintercourse Act, has never been terminated or abandoned. Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979); Narragansett Tribe of Indians v. Southern R.I. Land Dev. Corp., 418 F.Supp. 798, 803 (D.R.I.1976). The district court assumed these elements existed until the enactment of the Catawba Indian Tribe Division of Assets Act of 1959. Thus, the principal issue is whether the 1959 Act precludes the Tribe from relying on the Nonintercourse Act and subjects its claim to the South Carolina statute of limitations. IV In considering the effect of the 1959 Act on the Tribe’s claim, we must be mindful of the canons of construction the Supreme Court has enunciated for use in construing statutes that affect Indian tribes. Such statutes should not be construed to the Indians’ prejudice. Congressional intent to abrogate or modify a treaty right must be clearly expressed, and doubtful expressions are to be resolved in favor of the Indians. See Antoine v. Washington, 420 U.S. 194," }, { "docid": "14605773", "title": "", "text": "applicable to the Tribe’s claim. It then held that the state statute of limitations barred the claim. Ill In Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-68, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974), the Supreme Court reiterated the nation’s policy with respect to lands occupied by Indians: It very early became accepted doctrine in this Court that although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign-first the discovering European nation and later the original States and the United States — a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act. Once the United States was organized and the Constitution adopted, these tribal rights to Indian lands became the exclusive province of the federal law. Indian title, recognized to be only a right of occupancy, was extinguishable only by the United States. The Federal Government took early steps to deal with the Indians through treaty, the principal purpose often being to recognize and guarantee the rights of Indians to specified areas of land.... The United States also asserted the primacy of federal law in the first Nonintercourse Act passed in 1790,1 Stat. 137,138, which provided that “no sale of lands made by any Indians ... within the United States, shall be valid to any person ... or to any state ... unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.” This has remained the policy of the United States to this day. (footnote omitted) To establish a prima facie case for a violation of the Nonintercourse Act, the Tribe must prove four elements: (1) that it is or represents an Indian tribe within the meaning of the Nonintercourse Act; (2) that the land in issue is covered by the Nonintercourse Act as tribal land; (3) that the United States has never approved or consented to the alienation of the tribal land; and (4) that" } ]

[ { "docid": "17703645", "title": "", "text": "Brassiere Corp., 285 F.Supp. 806 (S.D.N.Y.1968). And the rule does not mandate that a court neglect its duty to consider the need for the issuance of an injunction, in nature an extraordinary remedy, before issuing it. See Irving J. Dorfman Co. v. Borlan Industries, Inc., 309 F.Supp. 21, 25 (S.D.N.Y.1969) and the cases enumerated therein. This court, having reviewed the evidence by affidavit before it, and based upon the oral argument it has entertained, has determined, in the exercise of its discretion, that the injunction should not issue. The application is, therefore, denied. 1. The court finds that the equities lie against plaintiff because of the delay in instituting the suit and bringing on the motion. Delays in seeking preliminary injunctions have been held grounds for barring that relief. For as Judge Bryan has stated in the Gillette Company v. Ed Pinaud, Inc., 178 F. Supp. 618, 622 (S.D.N.Y.1959) case: “ . . . while laches may not be sufficient to bar a permanent injunction it may well be a bar to preliminary relief. A preliminary injunction is sought upon the theory that there is an urgent need for speedy action to protect the plaintiff’s rights. By sleeping on its rights a plaintiff demonstrates the lack of need for speedy action and cannot complain of the delay involved pending any final relief to which it may be entitled after a trial of all the issues. If See also, Klauber Brothers Inc. v. Lady Marlene Brassiere Corp., supra; Thomas Wilson & Co. v. Irving J. Dorfman, 268 F.Supp. 711 (S.D.N.Y.1967); Helena Rubinstein, Inc. v. Frances Denney, Inc., 286 F.Supp. 132 (S.D.N.Y.1968); Irving J. Dorfman Co. v. Borlan Industries, Inc., supra; American Fabrics Co. v. Lace Art, Inc., 291 F.Supp. 589 (S.D. N.Y.1968). As was stated previously, plaintiff knew of the alleged infringement at least some seven and one-half months prior to the filing of this action, yet took no steps to obtain relief. As a matter of fact, according to defendant, plaintiff did not even see fit to reply to defendant’s letter requesting the particulars regarding the copyright plaintiff had represented" } ]

[ { "docid": "2521650", "title": "", "text": "of these contracts, and with the exception of a few contracts under which large volumes of gas are taken into the system, the gas deliveries made under the Gas Purchase Contract are an average, or a high average, of the daily volumes taken by Continental under the other gas purchase contracts under which gas is supplied to its pipeline system. (Galbraith Testimony, Tr. p. 27.) 22. At the time of termination of the 1972 contract the average daily deliveries of gas under the contract were 1,376 MCF per day — less than 1% of the average daily volume of gas received into Continental’s Loui siana Gas System. This volume of gas is not essential to the continued operation of the Louisiana Gas System, and that system would continue in operation regardless of whether deliveries of this gas are immediately resumed. Since April 1, 1976, Continental has also been able to meet all contractual commitments to customers, and has had no forced reduction or curtailment of deliveries to customers since that date. 23. There is considerable evidence in the record as to the volumes of gas which Continental presently has “in storage” in the ground, or which Continental has a right to receive under forward trade agreements with others. For example, Continental “underproduces” its own wells at 90% of their daily deliverability, with the result that approximately 10% of the gas which could be produced and delivered each day remains “stored” in the ground. The average daily deliverability of Continental’s wells is approximately 30,000,000 cubic feet per day, and Continental thus stores in the ground approximately 3,000,000 cubic feet of gas each day — two times the average daily volume under the 1972 contract. Continental has also “forward traded” gas for redelivery in the future, and there is a current balance of gas due for redelivery to Continental of approximately 2,836,883,000 cubic feet — a volume equal to deliveries under the 1972 contract for over 5V2 years. 24. The record also shows that since termination of the 1972 contract, Continental has had available and has delivered to customers “excess” gas in" }, { "docid": "2521648", "title": "", "text": "increase in price comparable to that provided in the LIG amendment, but Continental refused. Continental’s refusal to amend the 1972 contract was at the same time that Continental was itself obtaining amendments to its own gas contracts with its large industrial customers so as to greatly reduce its fixed gas delivery obligations, and to provide an increase in price to current market values for certain volumes of gas to be delivered. 18. Following Continental’s refusal to amend the 1972 contract, defendants terminated performance of the contract effective April 1,1976, and on that date began selling the gas to LIG, on a day-to-day basis. 19. Although gas deliveries to Continental ceased on or about March 31, 1976, Continental was not made aware of the cessation of deliveries until on or about June 2, 1976, when written notice was received by Continental from the operator in the field concerning entitlement to gas production from the field, and the allocation of produced volumes to the various owners. (Galbraith Affidavit, paragraph 13). Effects of Nonperformance 20. Continental owns and operates an intrastate natural gas pipeline system located in southwestern Louisiana, known as its Louisiana Gas System. Continental buys natural gas, transports it in the pipeline system, and sells it to system customers. These customers include seven industrial users in the vicinity of Lake Charles and Gillis, Louisiana, as well as the Town of Eunice, and approximately 200 agricultural and individual users. Continental itself uses approximately 40 to 50 thousand MCF daily in its own refinery, petrochemical, and other plant facilities located in the Lake Charles and Gillis, Louisiana areas. Continental’s daily sales or use from the pipeline system approximate 182,000 MCF, and contract rights of several of the large industrial customers to receive daily volumes of natural gas continue until the mid-1980’s (Galbraith Affidavit, Paras. 14 and 17). 21. The supply of natural gas for Continental’s Louisiana Gas System comes from its 100 to 150 contracts under which it purchases gas from producers in fields in south Louisiana accessible to the Louisiana Gas System. The Gas Purchase Contract involved in this action is one" }, { "docid": "2521649", "title": "", "text": "operates an intrastate natural gas pipeline system located in southwestern Louisiana, known as its Louisiana Gas System. Continental buys natural gas, transports it in the pipeline system, and sells it to system customers. These customers include seven industrial users in the vicinity of Lake Charles and Gillis, Louisiana, as well as the Town of Eunice, and approximately 200 agricultural and individual users. Continental itself uses approximately 40 to 50 thousand MCF daily in its own refinery, petrochemical, and other plant facilities located in the Lake Charles and Gillis, Louisiana areas. Continental’s daily sales or use from the pipeline system approximate 182,000 MCF, and contract rights of several of the large industrial customers to receive daily volumes of natural gas continue until the mid-1980’s (Galbraith Affidavit, Paras. 14 and 17). 21. The supply of natural gas for Continental’s Louisiana Gas System comes from its 100 to 150 contracts under which it purchases gas from producers in fields in south Louisiana accessible to the Louisiana Gas System. The Gas Purchase Contract involved in this action is one of these contracts, and with the exception of a few contracts under which large volumes of gas are taken into the system, the gas deliveries made under the Gas Purchase Contract are an average, or a high average, of the daily volumes taken by Continental under the other gas purchase contracts under which gas is supplied to its pipeline system. (Galbraith Testimony, Tr. p. 27.) 22. At the time of termination of the 1972 contract the average daily deliveries of gas under the contract were 1,376 MCF per day — less than 1% of the average daily volume of gas received into Continental’s Loui siana Gas System. This volume of gas is not essential to the continued operation of the Louisiana Gas System, and that system would continue in operation regardless of whether deliveries of this gas are immediately resumed. Since April 1, 1976, Continental has also been able to meet all contractual commitments to customers, and has had no forced reduction or curtailment of deliveries to customers since that date. 23. There is considerable" }, { "docid": "2521660", "title": "", "text": "not to include a drastic and unforeseen price rise of the magnitude of 500% over a three year period which was beyond the control of either party. 8. Because of our conclusion that plaintiff is not likely to prevail in showing that the force majeure clause of the Gas Purchase Contract was not intended to cover the rapid, exorbitant price rise here an issue, the Court pretermits consideration of whether plaintiff would be likely to prevail in convincing a court of equity to become a participant in the specific enforcement of a provision requiring a party to continue to sell natural gas for only one-fifth of its present value pursuant to a contract made without expectation or reason to expect that a drastic price rise would shortly thereafter occur. The Court is, however, mindful of the scholarly analysis and recommendations set forth in “The Energy Crisis and Economic Impossibility in Louisiana Fuel Requirements Contracts: A Gameplan for Reform”, 49 Tul.L.Rev. 605 (1975). Irreparable Injury 9. The gas covered by the 1972 Gas Purchase Contract is significant but not essential to the continued operation of Continental’s Louisiana Gas System and Continental will not suffer irreparable injury if resumption of deliveries is not immediately ordered. Natural gas is not a unique commodity but, rather, may be and is continually purchased on the open market. Alternative sources of gas supply do exist, and any need which Continental might have for gas could be satisfied readily by purchase upon the open market. Continental’s claim is clearly compensable in money damages and the extraordinary remedy of preliminary injunctive relief is neither required, nor warranted, in this case. Marthinson v. King, 150 F. 48, 52 (5th Cir. 1906). Continental has also made deliveries in excess of the amount required to be delivered to some customers, indicating that Continental has to some extent had an excess of natural gas. The fact that Continental now enters short-term rather than long-term contracts with its suppliers tends to undercut Continental’s contention that it requires a long-term commitment from the instant defendants in order to engage in long-term planning. 10. The" }, { "docid": "2521656", "title": "", "text": "faces the possibility that if defendants are to be permitted to terminate gas deliveries to Continental under the Gas Purchase Contract, such action could have the effect of encouraging other sellers-suppliers to the Louisiana Gas System to take similar action. The injury to Continental could be serious, and its supply-demand situation could deteriorate rapidly, if additional sellers cease deliveries to Continental of gas volumes being delivered under their gas sales contracts. CONCLUSIONS OF LAW 1. This Court has jurisdiction of the parties and under 28 U.S.C. Section 1332 jurisdiction over the subject matter based on diversity of citizenship between plaintiff and all defendants. 2. The Fifth Circuit has enumerated four factors which must be considered by this Court in exercising its discretion to determine what disposition should be made of a Motion for a Preliminary Injunction under the provisions of F.R.Civ.P. Rule 65. Before awarding a preliminary injunction, the Court must consider the answers to the following questions: (1) Is there a substantial likelihood that plaintiffs will prevail on the merits? (2) Is there a substantial threat that plaintiffs will suffer irreparable injury if interlocutory injunctive relief is not granted? (3) Does the threatened injury to plaintiffs outweigh the threatened harm the injunction may do to defendants? (4) Will the granting of a preliminary injunction disserve the public interest? Buchanan v. United States Postal Service, 508 F.2d 259, 266 (5th Cir. 1975); Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). The Likelihood of Prevailing on the Merits 3. Continental has not shown that it is likely to prevail on the merits of this controversy inasmuch as defendants have shown the occurrence over a relatively short period of time of a drastic price rise in the price of gas after execution of the Gas Purchase Contract, which seems likely to qualify as a force majeure event under the contract provision that force majeure includes not only the particular events specified in the contract but also “other causes whether of the kind herein enumerated or otherwise not reasonably within the control of the party claiming" }, { "docid": "2521654", "title": "", "text": "on July 1, 1977. As Mr. Carroll explained, if the price rise was too high, Continental would prefer to do without the gas. 27. Plaintiff Continental presently has enough daily deliverability of natural gas from its system to supply the current needs of its system customers, and will have enough such deliverability to continue to supply these daily needs on a short-term basis without the gas volumes which Continental contracted to purchase from defendants. Nevertheless, Continental suffers some injury from the failure of defendants to deliver the gas volumes in question. First, replacement of these volumes in volves producing from other reserves attached to Continental’s pipeline system at increased levels, in order to satisfy daily system demands, and such increased production means that gas supplies which otherwise would have been available in the future to help satisfy needs of the system, when those needs cannot be met by daily deliverability, will not be available at such future time. Second, the Gas Purchase Contract is a long-term supply of natural gas for Continental’s pipeline system, and in the operation of the pipeline such long-term supplies make possible the “forward trading” of gas, so that gas presently available but not needed can be exchanged with third parties for gas supplies in the future. Thus, such long-term gas, if it is available, can be provided to third parties under an arrangement calling for the redelivery of the gas to Continental at some future time. Such “forward trading” or exchanging of present supplies in return for redelivery of supplies in the future is important to the flexibility needed by the pipeline system to deliver on a daily basis the requirements of the system customers and at the same time avoid an excess supply in the pipeline. Third, the Continental system may suffer a shortage of gas as early as the spring of 1977; for considering the cold weather in early 1977 and resultant increased energy demand, the availability of fuel oil to satisfy a portion of system customers’ demands is uncertain. (Galbraith Testimony, Tr. pp. 19-25; Galbraith Affidavit, paras. 16, 20). 28. Continental also" }, { "docid": "2521651", "title": "", "text": "evidence in the record as to the volumes of gas which Continental presently has “in storage” in the ground, or which Continental has a right to receive under forward trade agreements with others. For example, Continental “underproduces” its own wells at 90% of their daily deliverability, with the result that approximately 10% of the gas which could be produced and delivered each day remains “stored” in the ground. The average daily deliverability of Continental’s wells is approximately 30,000,000 cubic feet per day, and Continental thus stores in the ground approximately 3,000,000 cubic feet of gas each day — two times the average daily volume under the 1972 contract. Continental has also “forward traded” gas for redelivery in the future, and there is a current balance of gas due for redelivery to Continental of approximately 2,836,883,000 cubic feet — a volume equal to deliveries under the 1972 contract for over 5V2 years. 24. The record also shows that since termination of the 1972 contract, Continental has had available and has delivered to customers “excess” gas in volumes far greater than that covered by the 1972 contract. For example, on April 1, 1976, Continental entered into a contract to supply gas to Varibus Corporation “as and when” excess gas was available, and since that date Continental has delivered volumes of gas to Varibus each month which are approximately 36-37 times the volumes under the 1972 contract. The record also reflects that since 1975 in the case of Olin, and since 1974 in the case of PPG and Firestone, Continental has had an option to supply most, if not all, of the energy requirements of those customers in fuel oil, rather than in gas, but to date Continental has chosen to supply all requirements in gas. 25. The record further shows that even under Continental’s most conservative reserve estimates, Continental does have sufficient gas supplies to meet its non-substitutable gas demand (i. e., Continental’s minimum gas supply obligation, above which Continental has the option of supplying requirements in fuel oil) for all of 1977, and at least through the first half of 1978." }, { "docid": "2521636", "title": "", "text": "MEMORANDUM OPINION HEEBE, Chief Judge. This matter is before the Court on the motion of Continental Oil Company, plaintiff herein (“Continental”), for a preliminary injunction to compel defendants to resume deliveries of natural gas to Continental under a certain gas purchase contract dated April 24,1972. Defendants terminated performance under that contract on April 1, 1976 when Continental refused to amend or renegotiate the contract following a drastic and unforeseen rise in the price and value of natural gas, which defendants assert was a force majeure event under the contract, and which defendants say destroyed the basic and fundamental assumptions on which the parties contracted. A hearing was held upon Continental’s motion on February 3 and 4, 1977. Based upon the evidence presented, the Court makes the following Findings and Conclusions in support of its decision to deny Continental’s request for a preliminary injunction. FINDINGS OF FACT The Parties 1. Plaintiff Continental Oil Company (“Continental”) is a Delaware corporation having its principal place of business in the State of Texas. 2. Defendant Crutcher-Tufts Corporation (“Crutcher-Tufts”) is a Louisiana corporation with its principal place of business in that State; defendant Hibernia National Bank is the testamentary executor of the last will and testament of Gordon I. Atwa-ter, and is a federally chartered banking association located in Orleans Parish, Louisiana, and is a citizen of the State of Louisiana; all other defendants are citizens of the State of Louisiana. 3. Plaintiff, Continental, is an integrated oil and gas producer, refiner, and marketer engaged in oil and gas exploration, production and transportation on a worldwide basis. Continental employs approximately 45,000 employees. Within the State of Louisiana, Continental operates an intrastate gas pipeline known as Continental’s “Louisiana Gas System”, through which Continental delivers gas to seven industrial users in the Lake Charles area (Olin Corporation, PPG Industries, Inc., Firestone Tire and Rubber Company, Continental Carbon Company, Wanda Petroleum Company, Continental Oil Refinery, and Continental’s Petrochemical Facility), and to the Town of Eunice, and to approximately 200 agricultural and individual end users. 4. Defendant, Crutcher-Tufts Corporation, is a small independent company engaged in investment and participation" }, { "docid": "2521643", "title": "", "text": "and that the above requirements that any force majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to the demands of the opposing party when such course is inadvisable in the discretion of the party having the difficulty. (Emphasis added) Performance 11. First production dedicated to Continental under the Gas Purchase Contract commenced in September, 1972; and, commencing with such production Continental purchased under the contract from defendants, on a daily basis, natural gas attributable to the interest of defendants, and Continental paid defendants, at the price provided in the Gas Purchase Contract, for all such gas. (Galbraith Testimony and affidavit paragraph 5). 12. The Gas Purchase Contract was performed by defendants-sellers and plaintiff-purchaser until on or about March 31,1976, when defendants ceased deliveries of their interest in gas produced from the designated leaseholds and lands. At the time of such cessation of deliveries, average daily volumes being delivered to Continental approximated 1,367 Mcf of gas. (Galbraith Testimony, Tr. p. 27.) 13. Upon termination of deliveries to Continental, defendants commenced delivering the gas to a third party, Louisiana Intrastate Gas Corporation, on a daily basis, at a price approximately five times the contract price under the Gas Purchase Contract. Compare the Gas Purchase Contract initial price of 31.9 cents per Mcf with the price received from Louisiana Intrastate Gas Corporation of $1.35 per MMBTU, which equates to $1.53 per MCF. (Galbraith Affidavit, paragraph 5, and testimony of J. D. Tufts, Tr. p. 65.) Unforeseen Circumstances 14. Following execution of the 1972 contract, there was a drastic and unforeseen rise in the price and value of natural gas within the Reddell Field. By December 1, 1973, the price of gas had risen to 60 cents per MCF, or double the price set forth in the 1972 contract; by December 1,1974, the price had risen to $1.18 per MCF; and by November 30, 1975, the price had risen to $1.35 per MMBTU (approximately $1.53 per MCF). Elsewhere along Continental’s Louisiana Gas System the price of gas rose even higher, to current prices" }, { "docid": "5966080", "title": "", "text": "case of copyright infringement does entitle plaintiff to a preliminary injunction without a detailed showing of irreparable harm. Rushton v. Vitale, 218 F.2d 434, 436 (2 Cir. 1955). “A copyright holder in the ordinary case may be presumed to suffer irreparable harm when his right to the exclusive use of the copyrighted material is invaded.” Rice v. American Program Bureau, 446 F.2d 685, 688 (2 Cir. 1971); American Metropolitan Enterprises of New York, Inc. v. Warner Bros. Records, Inc., 389 F.2d 903, 905 (2 Cir. 1968). It has also been suggested that preliminary injunctions “are perhaps more readily granted” in fabric design and other such cases “where delay involved in waiting for a final decree may amount to a denial of any effective relief.” Nimmer, supra § 157.1, and collected cases in n. 179. Cf. Thomas Wilson & Co. v. Irving J. Dorfman Co., 268 F.Supp. 711 (S.D.N.Y.1967). But there is also a residuum of authority that even if a detailed showing of irreparable harm is not necessary, plaintiff must make at least “a threshold showing” of such harm. American Fabrics Co. v. Lace Art, Inc., 291 F.Supp. 589, 591 (S.D.N.Y.1968) (emphasis added). The court is satisfied that the large disparity in price between defendants’ product and plaintiff’s is a sufficient indicator of irreparable harm to plaintiff’s reputation as a high quality exclusive distributor to warrant the relief requested. Moreover, contrary to defendants’ contention, Judscott’s activities in licensing Imperial do not preclude an assertion of irreparable harm to its business reputation. And defendants’ claim that Judscott must be denied equitable relief because of fraud and trickery in the use of the Dover copyright notice is equally without merit. As to defendants’ contention that money damages should be adequate, it hardly bears mentioning that continuing injury to one’s reputation is more easily enjoined than recompensed. Moreover, the court notes, without expressly passing on the question, that there is some authority in this circuit that if plaintiff succeeds on the merits, it may actually be limited to injunctive relief if defendants are successful in establishing their innocent intent in copying the copy" }, { "docid": "2521638", "title": "", "text": "in oil and gas properties, and 90% of whose holdings are located in the Reddell Field, in Evangeline Parish, Louisiana. Crutcher-Tufts is not engaged in the purchase, marketing or transportation of oil and gas, nor in the operation of any natural gas pipeline, and Crutcher-Tufts makes no sales of oil or gas directly to industrial, agricultural, or individual end users. Crutcher-Tufts Corporation is owned and operated by two persons, Albert B. Crutcher, Jr. and J. D. Tufts, II, and employs one clerical employee. The other defendants involved in this proceeding are all individuals. Contract Formation 5. This action involves, inter alia, a request by Continental for specific performance of a contract for the sale and purchase of substantial quantities of natural gas on a daily basis, and the amount in controversy greatly exceeds $10,000.00, exclusive of interest and costs. 6. The individual Defendants, as Seller, and Plaintiff, Continental, as Buyer, entered into a gas purchase contract dated April 24, 1972, copy of which is attached to the complaint as Exhibit “A” (Plaintiff Exhibit A) for the sale and delivery of natural gas produced by or for the account of defendants from certain mineral leases and lands located in the Reddell Field, Evangeline Parish, Louisiana, namely, the gas to be produced from the new Wilcox Units “D” well proposed to be drilled by Inexco Oil Company (Inexco), the Operator within the field. In the contract Crutcher-Tufts Corporation was designated as the Sellers’ Representative. The Gas Purchase Contract was Continental’s standard form of “Gas Purchase Contract”. The contract was amended by instrument dated December 29, 1972, copy of which is attached to the complaint as Exhibit B (Plaintiff Exhibit B). As so amended the contract is herein sometimes called “Gas Purchase Contract” or “the 1972 contract”. 7. The Gas Purchase Contract was negotiated by defendant J. D. Tufts on behalf of all defendants. When the contract was made Mr. Tufts had been in the business of exploring for and producing oil and gas for a number of years, and had negotiated contracts for the sale of such gas production, including gas produced" }, { "docid": "2521637", "title": "", "text": "a Louisiana corporation with its principal place of business in that State; defendant Hibernia National Bank is the testamentary executor of the last will and testament of Gordon I. Atwa-ter, and is a federally chartered banking association located in Orleans Parish, Louisiana, and is a citizen of the State of Louisiana; all other defendants are citizens of the State of Louisiana. 3. Plaintiff, Continental, is an integrated oil and gas producer, refiner, and marketer engaged in oil and gas exploration, production and transportation on a worldwide basis. Continental employs approximately 45,000 employees. Within the State of Louisiana, Continental operates an intrastate gas pipeline known as Continental’s “Louisiana Gas System”, through which Continental delivers gas to seven industrial users in the Lake Charles area (Olin Corporation, PPG Industries, Inc., Firestone Tire and Rubber Company, Continental Carbon Company, Wanda Petroleum Company, Continental Oil Refinery, and Continental’s Petrochemical Facility), and to the Town of Eunice, and to approximately 200 agricultural and individual end users. 4. Defendant, Crutcher-Tufts Corporation, is a small independent company engaged in investment and participation in oil and gas properties, and 90% of whose holdings are located in the Reddell Field, in Evangeline Parish, Louisiana. Crutcher-Tufts is not engaged in the purchase, marketing or transportation of oil and gas, nor in the operation of any natural gas pipeline, and Crutcher-Tufts makes no sales of oil or gas directly to industrial, agricultural, or individual end users. Crutcher-Tufts Corporation is owned and operated by two persons, Albert B. Crutcher, Jr. and J. D. Tufts, II, and employs one clerical employee. The other defendants involved in this proceeding are all individuals. Contract Formation 5. This action involves, inter alia, a request by Continental for specific performance of a contract for the sale and purchase of substantial quantities of natural gas on a daily basis, and the amount in controversy greatly exceeds $10,000.00, exclusive of interest and costs. 6. The individual Defendants, as Seller, and Plaintiff, Continental, as Buyer, entered into a gas purchase contract dated April 24, 1972, copy of which is attached to the complaint as Exhibit “A” (Plaintiff Exhibit A) for" }, { "docid": "2521663", "title": "", "text": "System and are available on the open market. Continental’s huge system will not be seriously disrupted by denial of preliminary injunctive relief. Defendants on the other hand comprise a few individuals, and one corporation 90% of whose holdings are located in the Reddell Field, which is the subject of this lawsuit. While awaiting the trial on the merits, defendants’ income from gas production would be cut 80% if a preliminary injunction were granted to mandate their resumption of deliveries at a price 80% below the present market value. The defendants have also been forced to participate, and may be forced to participate again, in the drilling of new wells, and in the reworking of existing wells which are at tremendous economic loss to the defendants under the 1972 contract. No such loss, however, is shared by Continental. Under these circumstances, the defendants would suffer considerably more from a grant of the preliminary injunction than Continental will suffer from its denial. Thus, when the relative equities are balanced it is clear to the Court that the preliminary injunction should be denied. Eutectic Welding Corp. v. Zeisel, 11 F.R.D. 78, 80 (D.N.J.1950); Guardian Life Insurance Co. v. Guardian Nat. Life Insurance Co., 158 F.Supp. 623, 627 (E.D.La.1958); and Coffee Dan’s Inc. v. Coffee Don’s Charcoal Broiler, 305 F.Supp. 1210, 1216, 1217 (N.D.Cal.1969). Public Interest 12. The public interest will not be dis-served by denial of a preliminary injunction in the instant case. Undeniably a strong public interest informs the energy industry. Address by President Ford, World Energy Conference, Sept. 23, 1974, in U.S. Dept. of State Bull. No. 1842, A Global Approach to the Energy Problem (1974). The State of Louisiana has itself manifested a strong concern to prevent waste and wasteful utilization of energy resources, including intrastate natural gas, through passage of Louisiana’s Natural Resources and Energy Act of 1973, LSA R.S. 30:501 et seq. Allowing plaintiffs to purchase such gas at an extremely cheap price will certainly not encourage them to be as careful in avoiding waste as if they were required to pay the gas’s actual market value. We" }, { "docid": "2521653", "title": "", "text": "26. The record also reflects that on September 1, 1976, the defendants tendered to Continental, for sale and delivery, all of the gas covered by the 1972 contract (except the xk of 1% attributable to the interest of the Hibernia National Bank), but to date Continental has not accepted that tender. The Court feels that if Continental actually needed the gas it would have accepted this tender and either used the gas to fulfill customer requirements now, or forward traded the gas for redelivery in the future. Crutcher-Tufts Corporation also offered its Unit “A” gas production for sale to Continental in December of 1976, for a period of up to 2 or 3 years, but Continental elected to purchase this gas for only a period of six months. Mr. Frank Carroll, who handled this purchase for Continental, testified that Continental declined to purchase this Unit “A” production for a longer period because Continental wished to wait and see what the price rise in the field would be under the scheduled amendment to the InexcoLIG contract on July 1, 1977. As Mr. Carroll explained, if the price rise was too high, Continental would prefer to do without the gas. 27. Plaintiff Continental presently has enough daily deliverability of natural gas from its system to supply the current needs of its system customers, and will have enough such deliverability to continue to supply these daily needs on a short-term basis without the gas volumes which Continental contracted to purchase from defendants. Nevertheless, Continental suffers some injury from the failure of defendants to deliver the gas volumes in question. First, replacement of these volumes in volves producing from other reserves attached to Continental’s pipeline system at increased levels, in order to satisfy daily system demands, and such increased production means that gas supplies which otherwise would have been available in the future to help satisfy needs of the system, when those needs cannot be met by daily deliverability, will not be available at such future time. Second, the Gas Purchase Contract is a long-term supply of natural gas for Continental’s pipeline system, and" }, { "docid": "2521664", "title": "", "text": "preliminary injunction should be denied. Eutectic Welding Corp. v. Zeisel, 11 F.R.D. 78, 80 (D.N.J.1950); Guardian Life Insurance Co. v. Guardian Nat. Life Insurance Co., 158 F.Supp. 623, 627 (E.D.La.1958); and Coffee Dan’s Inc. v. Coffee Don’s Charcoal Broiler, 305 F.Supp. 1210, 1216, 1217 (N.D.Cal.1969). Public Interest 12. The public interest will not be dis-served by denial of a preliminary injunction in the instant case. Undeniably a strong public interest informs the energy industry. Address by President Ford, World Energy Conference, Sept. 23, 1974, in U.S. Dept. of State Bull. No. 1842, A Global Approach to the Energy Problem (1974). The State of Louisiana has itself manifested a strong concern to prevent waste and wasteful utilization of energy resources, including intrastate natural gas, through passage of Louisiana’s Natural Resources and Energy Act of 1973, LSA R.S. 30:501 et seq. Allowing plaintiffs to purchase such gas at an extremely cheap price will certainly not encourage them to be as careful in avoiding waste as if they were required to pay the gas’s actual market value. We have seen no evidence that Continental has passed on to the public a benefit in the form of prices below market value made possible because Continental itself was able to obtain supplies of natural gas at extremely low prices. While the dispute here necessarily entails the public interest inasmuch as it involves energy, the present controversy is essentially a private contractual dispute about how the contracting parties will share the consequences of the energy crisis and the attendant mushrooming of energy values. The public interest does not dictate the drastic remedy of preliminary injunctive relief in such circumstances. 13. For all of the foregoing reasons, Continental’s Motion for a Preliminary Injunction is denied." }, { "docid": "2521661", "title": "", "text": "significant but not essential to the continued operation of Continental’s Louisiana Gas System and Continental will not suffer irreparable injury if resumption of deliveries is not immediately ordered. Natural gas is not a unique commodity but, rather, may be and is continually purchased on the open market. Alternative sources of gas supply do exist, and any need which Continental might have for gas could be satisfied readily by purchase upon the open market. Continental’s claim is clearly compensable in money damages and the extraordinary remedy of preliminary injunctive relief is neither required, nor warranted, in this case. Marthinson v. King, 150 F. 48, 52 (5th Cir. 1906). Continental has also made deliveries in excess of the amount required to be delivered to some customers, indicating that Continental has to some extent had an excess of natural gas. The fact that Continental now enters short-term rather than long-term contracts with its suppliers tends to undercut Continental’s contention that it requires a long-term commitment from the instant defendants in order to engage in long-term planning. 10. The long delay between the cessation of deliveries to Continental on April 1, 1976, and Continental’s filing of this motion for preliminary injunctive relief in January of 1977, also militates against Continental’s claim of irreparable injury. Irving J. Dorfman Co. v. Borlan Industries, 309 F.Supp. 21, 26 (S.D.N.Y.1969); Thomas Wilson & Co. v. Irving J. Dorfman Co., 268 F.Supp. 711, 714 (S.D.N.Y.1967), aff’d 433 F.2d 409 (2nd Cir. 1970); Poe v. Michael Todd Co., 151 F.Supp. 801, 803 (S.D.N.Y.1957); Gianni Cereda Fabrics, Inc. v. Bazaar Fabrics, Inc., 335 F.Supp. 278, 280-281 (S.D.N.Y.1971); and Brookhaven Housing Coalition v. Kunzig, 341 F.Supp. 1026, 1030 (E.D.N.Y.1972). Balance of Harms 11. The harm to the defendants if the preliminary injunction is granted would outweigh any harm to Continental if the injunction is denied. Continental is engaged in oil and gas operations on a worldwide basis, of which its Louisiana Gas System is only a part. The volumes of gas covered by the Gas Purchase Contract represent less than 1% of the average daily deliveries into or from the Louisiana Gas" }, { "docid": "2521644", "title": "", "text": "deliveries to Continental, defendants commenced delivering the gas to a third party, Louisiana Intrastate Gas Corporation, on a daily basis, at a price approximately five times the contract price under the Gas Purchase Contract. Compare the Gas Purchase Contract initial price of 31.9 cents per Mcf with the price received from Louisiana Intrastate Gas Corporation of $1.35 per MMBTU, which equates to $1.53 per MCF. (Galbraith Affidavit, paragraph 5, and testimony of J. D. Tufts, Tr. p. 65.) Unforeseen Circumstances 14. Following execution of the 1972 contract, there was a drastic and unforeseen rise in the price and value of natural gas within the Reddell Field. By December 1, 1973, the price of gas had risen to 60 cents per MCF, or double the price set forth in the 1972 contract; by December 1,1974, the price had risen to $1.18 per MCF; and by November 30, 1975, the price had risen to $1.35 per MMBTU (approximately $1.53 per MCF). Elsewhere along Continental’s Louisiana Gas System the price of gas rose even higher, to current prices of $2.00 and $3.00 per MCF. 15. The occurrence and magnitude of this drastic rise in price were not foreseen by any of the parties at the time of entering the 1972 contract. The defendants did not foresee it; and Continental has not suggested that it was able to predict such a drastic rise in price. The defendants also introduced into the record twenty-six other gas purchase contracts entered into by Continental along its Louisiana Gas System during 1971 and 1972, and in 1973, and the gas purchase contract entered into between Inexco and LIG in 1971, which show that other companies, among them Humble, Chevron, Exxon, Gulf, Phillips, Amoco, Atlantic Richfield, and H. L. Hunt, also entered into gas contracts in the same manner as the 1972 contract for long terms and with reference to gas prices as they existed at that time, and without anticipation of any drastic rise in price during the contract term. 16. The occurrence and magnitude of the drastic price rise could not reasonably have been foreseen by any" }, { "docid": "2521657", "title": "", "text": "substantial threat that plaintiffs will suffer irreparable injury if interlocutory injunctive relief is not granted? (3) Does the threatened injury to plaintiffs outweigh the threatened harm the injunction may do to defendants? (4) Will the granting of a preliminary injunction disserve the public interest? Buchanan v. United States Postal Service, 508 F.2d 259, 266 (5th Cir. 1975); Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). The Likelihood of Prevailing on the Merits 3. Continental has not shown that it is likely to prevail on the merits of this controversy inasmuch as defendants have shown the occurrence over a relatively short period of time of a drastic price rise in the price of gas after execution of the Gas Purchase Contract, which seems likely to qualify as a force majeure event under the contract provision that force majeure includes not only the particular events specified in the contract but also “other causes whether of the kind herein enumerated or otherwise not reasonably within the control of the party claiming suspension [of his duties to perform under the- contract].” 4. While a natural gas energy crisis of sorts had been recognized for some time prior to the execution of the Gas Purchase Contract in 1972, see finding of fact no. 16, supra, the drastic rise in price of a magnitude of nearly 500% over a short period of time was not foreseen or contemplated by either of the parties at the time the contract was executed in April 1972 and amended in December 1972. The contract was made in 1972 under conditions of rising but not skyrocketing gas prices. The enormous elevation of gas prices after the contract was executed was not anticipated by the parties and was beyond their control. 5. A venerable principle under Louisiana contract law is that a contract must be construed in light of the conditions and surrounding circumstances existing at the time of contracting, together with the terms and language used. Cooley v. Meridian Lumber Co., 195 La. 631, 197 So. 255, 258 (1940); C. A. Andrews C. Co." }, { "docid": "2521655", "title": "", "text": "in the operation of the pipeline such long-term supplies make possible the “forward trading” of gas, so that gas presently available but not needed can be exchanged with third parties for gas supplies in the future. Thus, such long-term gas, if it is available, can be provided to third parties under an arrangement calling for the redelivery of the gas to Continental at some future time. Such “forward trading” or exchanging of present supplies in return for redelivery of supplies in the future is important to the flexibility needed by the pipeline system to deliver on a daily basis the requirements of the system customers and at the same time avoid an excess supply in the pipeline. Third, the Continental system may suffer a shortage of gas as early as the spring of 1977; for considering the cold weather in early 1977 and resultant increased energy demand, the availability of fuel oil to satisfy a portion of system customers’ demands is uncertain. (Galbraith Testimony, Tr. pp. 19-25; Galbraith Affidavit, paras. 16, 20). 28. Continental also faces the possibility that if defendants are to be permitted to terminate gas deliveries to Continental under the Gas Purchase Contract, such action could have the effect of encouraging other sellers-suppliers to the Louisiana Gas System to take similar action. The injury to Continental could be serious, and its supply-demand situation could deteriorate rapidly, if additional sellers cease deliveries to Continental of gas volumes being delivered under their gas sales contracts. CONCLUSIONS OF LAW 1. This Court has jurisdiction of the parties and under 28 U.S.C. Section 1332 jurisdiction over the subject matter based on diversity of citizenship between plaintiff and all defendants. 2. The Fifth Circuit has enumerated four factors which must be considered by this Court in exercising its discretion to determine what disposition should be made of a Motion for a Preliminary Injunction under the provisions of F.R.Civ.P. Rule 65. Before awarding a preliminary injunction, the Court must consider the answers to the following questions: (1) Is there a substantial likelihood that plaintiffs will prevail on the merits? (2) Is there a" }, { "docid": "2521662", "title": "", "text": "long delay between the cessation of deliveries to Continental on April 1, 1976, and Continental’s filing of this motion for preliminary injunctive relief in January of 1977, also militates against Continental’s claim of irreparable injury. Irving J. Dorfman Co. v. Borlan Industries, 309 F.Supp. 21, 26 (S.D.N.Y.1969); Thomas Wilson & Co. v. Irving J. Dorfman Co., 268 F.Supp. 711, 714 (S.D.N.Y.1967), aff’d 433 F.2d 409 (2nd Cir. 1970); Poe v. Michael Todd Co., 151 F.Supp. 801, 803 (S.D.N.Y.1957); Gianni Cereda Fabrics, Inc. v. Bazaar Fabrics, Inc., 335 F.Supp. 278, 280-281 (S.D.N.Y.1971); and Brookhaven Housing Coalition v. Kunzig, 341 F.Supp. 1026, 1030 (E.D.N.Y.1972). Balance of Harms 11. The harm to the defendants if the preliminary injunction is granted would outweigh any harm to Continental if the injunction is denied. Continental is engaged in oil and gas operations on a worldwide basis, of which its Louisiana Gas System is only a part. The volumes of gas covered by the Gas Purchase Contract represent less than 1% of the average daily deliveries into or from the Louisiana Gas System and are available on the open market. Continental’s huge system will not be seriously disrupted by denial of preliminary injunctive relief. Defendants on the other hand comprise a few individuals, and one corporation 90% of whose holdings are located in the Reddell Field, which is the subject of this lawsuit. While awaiting the trial on the merits, defendants’ income from gas production would be cut 80% if a preliminary injunction were granted to mandate their resumption of deliveries at a price 80% below the present market value. The defendants have also been forced to participate, and may be forced to participate again, in the drilling of new wells, and in the reworking of existing wells which are at tremendous economic loss to the defendants under the 1972 contract. No such loss, however, is shared by Continental. Under these circumstances, the defendants would suffer considerably more from a grant of the preliminary injunction than Continental will suffer from its denial. Thus, when the relative equities are balanced it is clear to the Court that the" } ]

[ { "docid": "8558809", "title": "", "text": "its evaluation of the credibility of witnesses — which we are ill-disposed to disturb on appeal — the district court found that there was insufficient proof of “independent creation” to render the Daily Bond Cards copyrightable. The researchers had five facts to fill in on each card — nothing more and nothing less. They sometimes did minor additional research in order to find these facts, but little “independent creation” was involved. This conclusion is amply supported by the record and certainly not “clearly erroneous.” III. The district court held that a finding that the cards were not copyrightable did not necessarily preempt the applicable state law regarding unfair competition. We agree. The Copyright Act declares only that state law rights which “are equivalent to any of the exclusive rights within the general scope of copyright” are preempted. 17 U.S.C. § 301 (1982) (emphasis added). The legislative history attempts to describe the forms of unfair competition which are “equivalent” to rights protected by federal copyright law and which are not: “Misappropriation” is not necessarily synonymous with copyright infringement ... For example, state law should have the flexibility to afford a remedy ... against a consistent pattern of unauthorized appropriation by a competitor of the facts ... constituting “hot” news, whether in the traditional mode of International News Service v. Associated Press, 248 U.S. 215 [39 S.Ct. 68, 63 L.Ed. 211] (1918), or in the newer form of data updates from scientific, business or financial data bases. H.R.Rep. No. 94-1476, 94th Cong., 2d Sess., 132 reprinted in 1976 ILS.Code Cong. & Ad.News 5659, 5748. The New York Court of Appeals has expressly acknowledged that the Copyright Act preempts some state misappropriation claims. See Editorial Photocolor Archives, Inc. v. Granger Collection, 61 N.Y.2d 517, 523, 474 N.Y.S.2d 964, 463 N.E.2d 365 (1984). Accord Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir.1983). We are not persuaded by FII’s argument that misappropriation is not “equivalent” to the exclusive rights provided by the Copyright Act. We have held that “state law claims that rely on the misappropriation branch of unfair competition are preempted.” Warner Bros.," } ]

[ { "docid": "3766657", "title": "", "text": "531, 532, 55 S.Ct. 837, 844, 79 L.Ed. 1570, after pointing out that strictly speaking the phrase at common law related “to the palming off of one’s goods as those of a rival trader,” went on to say: “In recent years, its scope has been extended. It has been held to apply to misappropriation as well as misrepresentation, to the selling of another’s goods as one’s own — to misappropriation of what equitably belongs to a competitor. International News Service v. Associated Press, 248 U.S. 215, 241, 242, 39 S.Ct. 68, 63 L.Ed. 211. Unfairness in competition has been predicated of acts which lie outside the ordinary course of business and are tainted by fraud or coercion or conduct otherwise prohibited by law. Id., 248 U.S. 215, page 258, 39 S.Ct. 68, 63 L.Ed. 211.” Here he dropped a footnote referring to the “cases collected in Nims on Unfair Competition and TradeMarks,” of which the latest edition shows even more clearly why this is an “unruly concept,” constantly expanding and now including (among other extensive analogies to our present case) a breach of a contract against a disclosure of a secret process. See 4th Ed. 1947, 30-35, 36, 40, 52-66, 407-411, and elsewhere passim. So the Court has noted the thirty-one or more diverse types of business practices now subject to the control of the Federal Trade Commission as “unfair competition,” F. T. C. v. Bunte Bros., 312 U.S. 349, 354, 61 S.Ct. 580, 85 L.Ed. 881; and that lawyers’ standby, the Federal Digest, under the rubric “Trade-Marks and Trade-Names and Unfair Competition,” has several score key numbers listing the many forms of unfair competition. The “palming-off doctrine” is only one sardine among all the,fish in the ocean. All this evidence really seems to me so extensive and complete that I hesitate to embroider the matter, although it may well be the nub of the case. How could it be otherwise in a society which lives by competition, 6 Corbin on Contracts § 1379 (1951), than that any business rivalry in selling is competition and any legally forbidden course, unfair" }, { "docid": "4055415", "title": "", "text": "have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of International News Service v. Associated Press, 248 U.S. 215 (1918) [39 S.Ct. 68, 63 L.Ed. 211], or in the newer form of data updates from scientific, business, or financial data bases. Likewise, a person having no trust or other relationship with the proprietor of a computerized data base should not be immunized from sanctions against electronically or cryptographically breaching the proprietor’s security arrangements and accessing the proprietor’s data. The unauthorized data access which should be remediable might also be achieved by the intentional interception of data transmissions by wire, microwave or laser transmissions, or by the common unintentional means of “crossed” telephone lines occasioned by errors in switching. The proprietor of data displayed on the cathode ray tube of a computer terminal should be afforded protection against unauthorized printouts by third parties (with or without improper access), even if the data are not copyrightable. For example, the data may not be copyrighted because they are not fixed in a tangible medium of expression.... H. Report No. 1476, reprinted at 17 U.S.C. A. § 301. We do not believe the House report reflects Congress’s intent to preserve all misappropriation actions. If all misappropriation claims escaped § 301 preemption, a plaintiff could always challenge the use of his copyrighted material under both federal copyright law and the state law tort of misappropriation. This, in turn, would emasculate § 301. Congress considered § 301 as “one of the bedrock provisions” of the 1976 amendments to the Copyright Act and enacted § 301 in order to “establish a single system of federal statutory copyright.” Id. If we interpreted the House Report to preclude preemption of all misappropriation claims, we would assure that pendent claims could be asserted in almost all infringement actions. We do not believe that Congress intended this, and, therefore, we hold that all misappropriation claims, except those similar to the examples cited" }, { "docid": "22293341", "title": "", "text": "him from unintentional forfeiture of all his rights due to publication with copyright notice in the “wrong” name. See 425 F.2d at 400. By contrast, the plaintiffs need no such protection because the 1972 telecast was not a “divesting” publication. Their common-law rights remain intact. The protective rationale of Goodis cannot be used to force a holder of a common-law copyright to exchange it for statutory rights, simply because the work was included in an “investing” publication of a collective work bearing a copyright notice in the compiler’s name. We conclude that the District Court properly permitted the jury to find that CBS infringed the plaintiffs’ valid common-law copyright in the Compilation. C. Unfair Competition CBS next contends that the plaintiffs may not maintain a claim that the CBS Chaplin retrospective unfairly competed with plaintiffs’ plan to license “The Gentleman Tramp.” The argument implicitly questions whether New York unfair competition law applies to the taking of one item of a plaintiff’s property (the Compilation) and its use in competition with another item (“The Gentleman Tramp”). Explicitly, the argument asserts that the plaintiffs’ claim, nominally based on misappropriation of the Compilation, ultimately rests on appropriation of the films, and that a state law claim based on misappropriation of federally copyrighted materials is preempted under the doctrine of Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). We consider, first, whether CBS’s use of the Compilation is unfair competition under New York law and, second, whether such a state-law claim is preempted in the circumstances of this case. The misappropriation branch of the unfair competition tort traces its lineage to the Supreme Court’s decision in International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), upholding a decision enjoining INS from copying AP’s news bulletins, which AP had compiled at considerable effort and expense, and then selling the pirated information in competition with AP. With the subsequent decline of general federal" }, { "docid": "10539829", "title": "", "text": "that besides her investment of perhaps 15 hours of her time, she incurred a total of approximately $125 in out-of-pocket expenses to create the design at issue in this case. (Mayer Dep. pp. 81-83). Thus, Mayer is not suing to vindicate her right to the physical print which was given to defendant. It is plain that what Mayer is suing for is the deprivation of the rights flowing from the labor and expertise which she embodied in the snowflake. The misappropriation claims preserved by the statute are only those “not equivalent to any such exclusive rights.” The draft language thus is circular. It is apparent, though, that Congress recognized that, in at least some instances, misappro priation claims would be preempted. Noting that “ ‘misappropriation’ is not necessarily synonymous with copyright infringement,” House Report at 132, U.S.Code Cong. & Admin.News 1976, p. 5748 (emphasis added), the House Report used as an example of an unpreempted misappropriation action — International News Serv. v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) (“INS”). In INS, defendant was found to have taken the facts reported in plaintiff’s transmissions of “hot news” and used them in its own competing news service. The other example advanced was of sanctions imposed on one who improperly invades another’s computerized data base and gains access to the data. Both these examples involve subject matter other than copyright, specifically the facts and data as opposed to their expression. Thus, the House Report states that “a cause of action labelled as ‘misappropriation’ is not preempted if it is in fact based neither on a right within the general scope of copyright ... nor on a right equivalent thereto.” House Report at 132, U.S.Code Cong. & Admin.News 1976, p. 5748. It is thus not surprising that the House Report considered misappropriation to survive preemption. The tort it had in mind was not equivalent to copyright infringement. The misappropriation branch of unfair competition under New York law, however, is arguably a somewhat different tort, one that the House Report did not directly consider. Although it traces its roots" }, { "docid": "23107384", "title": "", "text": "The House Report stated: “Misappropriation” is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as “misappropriation” is not preempted if it is in fact based neither on a right within the general scope of copyright as specified by section 106 nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of International News Service v. Associated Press, 248 U.S. 215 [39 S.Ct. 68, 63 L.Ed. 211] (1918), or in the newer form of data updates from scientific, business, or financial data bases. H.R. No. 94-1476 at 132, reprinted in 1976 U.S.C.C.A.N. at 5748 (footnote omitted), see also FII, 808 F.2d at 209 (“‘misappropriation’ of ‘hot’ news, under International News Service, [is] a branch of the unfair competition doctrine not preempted by the Copyright Act according to the House Report” (citation omitted)). The crucial question, therefore, is the breadth of the “hot-news” claim that survives preemption. In INS, the plaintiff AP and defendant INS were “wire services” that sold news items to client newspapers. AP brought suit to prevent INS from selling facts and information lifted from AP sources to INS-affiliated newspapers. One method by which INS was able to use AP’s news was to lift facts from AP news bulletins. INS, 248 U.S. at 231, 39 S.Ct. at 69-70. Another method was to sell facts taken from just-published east coast AP newspapers to west coast INS newspapers whose editions had yet to appear. Id. at 238, 39 S.Ct. at 72. The Supreme Court held (prior to Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)), that INS’s use of AP’s information was unlawful under federal common law. It characterized INS’s conduct as amount[ing] to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped, in order to divert" }, { "docid": "23107383", "title": "", "text": "test. Having held the misappropriation claims to be preempted, Judge Easterbrook went on to hold that the plaintiffs could bring a state law contract claim. The court held that the defendants were bound by the software’s shrink-wrap licenses as a matter of contract law and that the private contract rights were not preempted because they were not equivalent to the ex-elusive rights granted by copyright law. In other words, the contract right claims were not preempted because the general scope requirement was not met. ProCD, 86 F.3d at 1455. We turn, therefore, to the question of the extent to which a “hot-news” misappropriation claim based on INS involves extra elements and is not the equivalent of exclusive rights under a copyright. Courts are generally agreed that some form of such a claim survives preemption. Financial Information, Inc. v. Moody’s Investors Service, Inc., 808 F.2d 204, 208 (2d Cir.1986), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987) (“FII”). This conclusion is based in part on the legislative history of the 1976 amendments. The House Report stated: “Misappropriation” is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as “misappropriation” is not preempted if it is in fact based neither on a right within the general scope of copyright as specified by section 106 nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of International News Service v. Associated Press, 248 U.S. 215 [39 S.Ct. 68, 63 L.Ed. 211] (1918), or in the newer form of data updates from scientific, business, or financial data bases. H.R. No. 94-1476 at 132, reprinted in 1976 U.S.C.C.A.N. at 5748 (footnote omitted), see also FII, 808 F.2d at 209 (“‘misappropriation’ of ‘hot’ news, under International News Service, [is] a branch of the unfair competition doctrine not preempted by the Copyright Act according to the House Report” (citation omitted))." }, { "docid": "18392125", "title": "", "text": "based neither on a right within the general scope of copyright as specified by Section 106 . .. nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts, (i.e., not the literary expression) constituting “hot” news, whether in the traditional mode of International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) or in the newer form of data updates from scientific, business or financial data bases.” [1976] U.S.Code Cong. & Admin. News at p. 5748. The first prong of the analysis under Section 301, the subject matter of copyright, is clearly satisfied in this case. Section 102 extends copyright protection to “original works of authorship fixed in any tangible medium of expression,” including literary works, and pictorial, graphic, and sculptural works. 17 U.S.C. § 102(a)(1) & (5). Architectural and engineering drawings fall within the subject matter of copyright. See Imperial Homes Corp. v. Lamont, 458 F.2d 895 (5th Cir. 1972); DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184 (M.D.Florida, 1962). The second prong of the preemption analysis contained in Section 301 requires the Court to determine whether the rights sought to be enforced under state law are “equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106.” 17 U.S.C. § 301(b)(3). Section 106 provides that an author has exclusive rights to do and to authorize (1) the reproduction of copyrighted work (to make copies), (2) the preparation of derivative works based on his copyrighted work, and (3) the distribution of copies of the copyrighted work to the public by sale or other transfer of ownership. Under this prong, Section 301 requires preemption when state law rights are not “different in kind” from the rights protected under the Copyright Act. In assessing whether a cause of action under state law is “equivalent” to a claim of copyright infringement, the Court must compare the rights sought to be protected under the" }, { "docid": "4462378", "title": "", "text": "supra, 723 F.2d at 200-01 (holding that state law claims based on the copying of excerpts from President Ford’s memoirs were preempted even with respect to information that was purely factual and not copyrightable). In this case, Stouffer alleges the misappropriation of certain elements of her “copyrighted works,” specifically The Legend of RAH and the Muggles, the Lilly book, and Silver Linings. (Counterclaims ¶¶ 142-144.) As Stouffer acknowledges, these literary works are clearly subject to copyright protection. (Id. ¶¶ 142, 144); 17 U.S.C. § 102(a)(1) (listing “literary works” as falling within the subject matter of copyright). Stouffer’s claims of infringement of elements of her literary works, therefore, meet the subject matter requirement necessary for preemption. Stouffer seeks to analogize this case to the line of cases represented by International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), the so-called “hot” news cases. This contention is unavailing. First, these cases provide an exception to preemption for cases where the underlying work is not copyrightable. See Financial Info., supra, 808 F.2d at 208-09. Here Stouffer’s literary works, and the alleged misappropriated character material, are clearly within the scope of the Copyright Act. Second, the “hot” news cases are limited to the narrow circumstances where the defendant takes time-sensitive information that the plaintiff has generated or gathered at a cost, and so reduces the incentive for the plaintiff to produce the product or service that its existence or quality would be substantially threatened. See Motorola, supra, 105 F.3d at 845; Financial Info., supra, 808 F.2d at 209. The instant case unambiguously falls outside of these factual parameters. However, while the subject matter requirement is clearly met, the Court declines to dismiss Stouffer’s unfair competition claim as preempted, because it falls outside the general scope requirement of the Copyright Act. The Act expressly preempts “all legal and equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106 in works of authorship ...” 17 U.S.C. § 301(a). However, no preemption occurs if “an ‘extra element’ is" }, { "docid": "15272677", "title": "", "text": "federally preempted), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987). Plaintiff alleges that “[a]ll of defendant’s state law claims are based upon the premise that the Pro motional. Previews furnished to Video Pipeline belong to Defendant and were misappropriated by Video Pipeline.” Pl.’s Br. at 16. Misappropriation, or “reverse passing off,” is grounded in the alleged unauthorized copying and use of another’s copyrighted expression, and thus fails the extra element, test. See Fundamental Too, Ltd. v. Universal Music Group, Inc., No. Civ. A. 97-1595, 1997 WL 381608, at *4 (E.D.Pa. July 9, 1997); see also Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir.1993) (holding misappropriation claim “grounded solely in the copying of a plaintiffs protected expression” was preempted by § 301 of Copyright Act), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 376 (1994). And, as the Second Circuit in Moody’s Investors determined, “ ‘[Sjtate law claims that rely on the misappropriation branch of unfair competition are preempted.’ ” Moody’s Investors, 808 F.2d at 208 (quoting Warner Bros., Inc. v. American Broad. Cos., Inc., 720 F.2d 231, 247 (2d Cir.1983)). In other words, reverse passing off occurs when one markets, sells, and represents the goods or services of another as its very own, and thus gives rise to an actionable claim for reproducing, distributing, or displaying copyrighted works. Contrary to plaintiffs argument, defendant asserts a “passing-off’ claim under New Jersey state unfair competition law, which is a claim distinctly different from that of misappropriation. In this case, defendant’s unfair competition claim alleges that plaintiff engaged in “unlawful ‘passing-off — -the practice of selling goods or services using a mark that is likely to cause confusion as to source, sponsorship or approval of those goods or services— under N.J.S.A. 56:4-1.” Answer & Amended Counterclaims, ¶ 64. Defendant essentially maintains that plaintiff “passed off’ its clip previews, which contain defendant’s trademarks, as having been created and produced by defendant. Passing off occurs when “[ojne fraudulently markets his goods as those of another if, though making no misrepresentation himself, he intentionally induces his purchasers so" }, { "docid": "14839730", "title": "", "text": "& Row, 723 F.2d at 200. The material at issue here clearly falls within the subject matter of copyright. The district court did not address this issue, and Ehat does not argue otherwise on appeal. We now turn to whether the rights Ehat seeks to assert under state common law are equivalent to those exclusive rights within the scope of copyright. Under federal law, the owner of copyright has the exclusive right “to reproduce the copyrighted work” and “to distribute copies” to the public by sale. See 17 U.S.C. §§ 106(1), (3). “When a right defined by state law may be abridged by an act which, in and of itself, would infringe one of the exclusive rights, the state law in question must be deemed preempted____ Conversely, when a state law violation is predicated upon an act incorporating elements beyond mere reproduction or the like, the rights involved are not equivalent and preemption will not occur.” Harper & Row, 723 F.2d at 200 (citations omitted). In an effort to distinguish this case from a preempted claim, the district court granted Ehat relief based on its finding that, by printing and selling Ehat’s notes, the Tanners “bodily appropriated the work product of plaintiff” and derived a profit from their misappropriation. Rec., vol. V, at 13-14. We need not decide whether this misappropriation of material states a claim for relief under Utah law. Assuming that it does, see generally International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918); Prosser & Keeton on Torts § 130 at 1020-22 (5th ed. 1984), we see no distinction between such a state right and those exclusive rights encompassed by the federal copyright laws. See Warner Bros., Inc. v. American Broadcasting Co’s., 720 F.2d 231, 247 (2d Cir.1983) (“state law claims that rely on the misappropriation branch of unfair competition are preempted”); Schuchart & Associates, 540 F.Supp. at 943-44 (same). See generally 1 Nimmer § 1.01[B], at 1-16 to 1-22. We cannot agree with the district court that Ehat’s state claim was not within the scope of copyright because it" }, { "docid": "12223231", "title": "", "text": "that Pollstar’s common law misappropriation claim is preempted by the Copyright Act. In determining preemption, the Ninth Circuit has stated: A state law cause of action is preempted by the Copyright Act if two elements are present. First, the rights that a plaintiff asserts under state law must be ‘rights that are equivalent’ to those protected by the Copyright Act. Second, the work involved must fall within the ‘subject matter’ of the Copyright Act set forth in 17 U.S.C. §§ 02 and 103.” Kodadek v. MTV Networks, 152 F.3d 1209, 1212 (9th Cir.1998) (citations omitted). Defendant concedes that Pollstar has “re-costume[d] its preempted ‘you-copied-our facts’ cause of action as a ‘hot news’ misappropriation claim,” which is not preempted by the Copyright Act. See National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 845 (2d Cir. 1997)(“NBA”)(“Based on the legislative history of the 1976 amendments, it is generally agreed that a ‘hot news’ INS-like claim survives preemption.”). However, Gigmania argues that the kinds of facts allegedly copied are not “hot news.” A “hot news” claim was recognized by the Supreme Court in International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) (“INS”). In INS, the defendant was a competing news service that copied facts from the bulletin boards and early editions of East Coast AP newspapers and wired the facts to its customers. Id. at 231, 39 S.Ct. 68. The Court held that INS’ conduct was a common law misappropriation of AP’s property. Id. at 247, 39 S.Ct. 68. More recently, the Second Circuit described the elements of a “hot news” claim in NBA According to the court, the elements central to an INS claim are: (i) the plaintiff generates or collects information at some cost or expense; (ii) the value of the information is highly time-sensitive; (iii) the defendant’s use of information constitutes free-riding on the plaintiffs costly efforts to generate or collect it; (iv) the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff; (v) the ability of the other party to free-ride" }, { "docid": "18392124", "title": "", "text": "(S.D.N.Y.1979). The legislative history of the Copyright Act of 1976, H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., reprinted in [1976] U.S.Code Cong. & Admin. News 5659, indicates an express Congressional intent to “preempt and abolish any rights under the common-law or statutes of a State that are equivalent to copyright and that extend to works coming within the scope of the Federal copyright law.” However, consistent with the decisions in Sears Roebuck and Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) and Compeo Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), “preemption does not extend to causes of action or subject matter outside the scope of the revised Copyright Statute.” The Committee report further states that Section 301 is not intended to preempt all causes of action for “unfair competition,” including the action for misappropriation. “ ‘Misappropriation’ is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as misappropriation is not preempted if it is [in] fact based neither on a right within the general scope of copyright as specified by Section 106 . .. nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts, (i.e., not the literary expression) constituting “hot” news, whether in the traditional mode of International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) or in the newer form of data updates from scientific, business or financial data bases.” [1976] U.S.Code Cong. & Admin. News at p. 5748. The first prong of the analysis under Section 301, the subject matter of copyright, is clearly satisfied in this case. Section 102 extends copyright protection to “original works of authorship fixed in any tangible medium of expression,” including literary works, and pictorial, graphic, and sculptural works. 17 U.S.C. § 102(a)(1) & (5). Architectural and engineering drawings fall within the subject matter of copyright. See Imperial Homes Corp." }, { "docid": "4055414", "title": "", "text": "at 1535. While those courts did use different analyses, we reach the same conclusion using the Seventh Circuit’s methodology in Baltimore Orioles. The “goal” underlying copyright law is the same as that driving the tort of misappropriation: balancing the need to provide economic incentives for authorship against the preservation of the freedom to imitate. Given the identical goals of the tort of misappropriation and the Copyright Act, we would be inclined to hold that § 301 always preempts the tort of misappropriation. We hesitate to go so far, though, because Congress clearly intended to preserve some form of the tort of misappropriation. The House Judiciary Committee Report on the 1976 Amendments to the Copyright Act states as follows: “Misappropriation” is not necessarily synonymous with copyright infringement and thus a cause of action labeled as “misappropriation” is not preempted if it is in fact based neither on a right within the general scope of copyright as specified by section 106 [section 106 of this title] nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of International News Service v. Associated Press, 248 U.S. 215 (1918) [39 S.Ct. 68, 63 L.Ed. 211], or in the newer form of data updates from scientific, business, or financial data bases. Likewise, a person having no trust or other relationship with the proprietor of a computerized data base should not be immunized from sanctions against electronically or cryptographically breaching the proprietor’s security arrangements and accessing the proprietor’s data. The unauthorized data access which should be remediable might also be achieved by the intentional interception of data transmissions by wire, microwave or laser transmissions, or by the common unintentional means of “crossed” telephone lines occasioned by errors in switching. The proprietor of data displayed on the cathode ray tube of a computer terminal should be afforded protection against unauthorized printouts by third parties (with or without improper" }, { "docid": "8558811", "title": "", "text": "Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231, 247 (2d Cir.1983). Nor do we believe that a possible exception to the general rule of preemption in the misappropriation area — for claims involving “any form of commercial immorality,” 1 Nimmer on Copyright, § 1.01[B]1, at 1-20 to 1-21 (1986), quoting Metropolitan Opera Ass’n v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483, aff'd, 279 App.Div. 632, 107 N.Y.S.2d 795 (1951)—should be applied here. We believe that no such exception exists and reject its use here. Whether or not reproduction of another’s work is “immoral” depends on whether such use of the work is wrongful. If, for example, the work is in the public domain, then its use would not be wrongful. Likewise, if, as here, the work is unprotected by federal law because of lack of originality, then its use is neither unfair nor unjustified. Second, FII attempts to characterize its claim here as one of “misappropriation” of “hot” news, under International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), a branch of the unfair competition doctrine not preempted by the Copyright Act according to the House Report. In International News Service, one wire service tapped the lines of another and printed the fruits of this effort at the same time the originator of the news reports distributed them to its subscribers. The Supreme Court’s remedy was to force the misappropriator to cease publishing the “hot” news until after the originator could distribute it. See also Bond Buyer v. Dealer’s Digest Publishing Co., 25 A.D.2d 158, 267 N.Y.S.2d 944 (1st Dept.1966) (one publisher of municipal bond news sheet sold teletype news to its subscribers before it published the material more widely; court enjoined second publisher from using that news in order to publish simultaneously with the first publisher). FII proved neither the quantity of copying nor the immediacy of distribution necessary to sustain a “hot” news claim. Because of lead times, to the extent that Moody’s did copy from FII, the information it published would have been at least ten days" }, { "docid": "18423775", "title": "", "text": "against the plaintiff. See id.; see also International News Service v. Associated Press, 248 U.S. 215, 239, 39 S.Ct. 68, 63 L.Ed. 211 (1918). Thus, a defendant can be liable for unfair competition if he misappropriates the “skill, expenditures, and labors of a competitor.” See Flexitized, Inc. v. National Flexitized Corporation, 335 F.2d 774, 781 (2d Cir.1964) (quoting Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.S.2d 556, 567, 190 N.Y.S.2d 977, 986, 161 N.E.2d 197, 203 (1959)). In this case, plaintiffs argue that defendants have misappropriated from the Miami Vice show; (a) the settings, (b) the style, dress and essential expressions of the lead characters, (c) the color patterns and (d) the title. See Plaintiffs Post-Hearing Brief at 4, see also Tr. at 53. Plaintiffs, however, have failed to establish a probability of success on the merits on this claim because this claim is preempted by the federal copyright laws. See 17 U.S.C. § 301 (1982); see also Warner Bros. v. American Broadcasting Co., 720 F.2d 231, 247 (2d Cir. 1983) . Under § 301, a state law claim is preempted by the federal copyright laws if two conditions are satisfied: (1) the subject matter of the work in which the state law rights are asserted comes within the subject matter of the copyright laws; and (2) the state law rights asserted in the work are equivalent to the exclusive rights protected by the federal copyright laws. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 200 (2d Cir. 1983), rev’d, on other grounds, — U.S. -, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1531 (S.D.N.Y.1985); 1 M. Nimmer, Nimmer on Copyright (“Nimmer”) § 1.01[B], at 1-9. The first condition under § 301 is clearly satisfied here because the “Miami Vice” television series comes within the subject matter of federal copyright. The subject matter of copyright consists of any “original works of authorship fixed in any tangible medium of expression” and includes “motion pictures and other audiovisual works.” See 17 U.S.C. § 102(a) (1982). Indeed, plaintiffs have argued" }, { "docid": "16474063", "title": "", "text": "Cir. 1975), cert. denied, 425 U.S. 933, 96 S.Ct. 2206, 48 L.Ed.2d 818 (1976). We conclude that the district court did not err in finding a common law right against unfair competition as have various state courts confronted with the identical issue. See, e. g., Gai Audio of New York, Inc. v. Columbia Broadcasting System, Inc., 27 Md.App. 172, 340 A.2d 736 (1975); Columbia Broadcasting System, Inc. v. Melody Recordings, Inc., 134 N.J.Super. 368, 341 A.2d 348 (1975); Mercury Record Productions, Inc. v. Economic Consultants, Inc., 64 Wis.2d 163, 218 N.W.2d 705 (1974), appeal dismissed, 420 U.S. 914, 95 S.Ct. 1107, 43 L.Ed.2d 386 (1975). These decisions generally rely upon and are fully consistent with Supreme Court decisions concerning unfair competition and commercial misappropriation. See, e. g., Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); Compeo Corp. v. Day Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918). We find no merit in MVC’s contentions that congressional activity in the field of copyright law preempts the area and precludes relief on the basis of common law unfair competition. See Goldstein v. California, supra, 412 U.S. 546, 551-52, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); Mercury Record Productions, Inc. v. Economic Consultants, Inc., supra, 64 Wis.2d 163, 179, 218 N.W.2d 705, 712 (1974), appeal dismissed, 420 U.S. 914, 95 S.Ct. 1107, 43 L.Ed.2d 386 (1975); 1 Nimmer § 35.225 (1976). Likewise, we find no merit in MVC’s contention that even if plaintiffs do possess common law property rights in the subject recordings, such rights were extinguished when the recordings were distributed. In disposing of a similar argument in International News Service v. Associated Press, supra, 248 U.S. 215, 236, 39 S.Ct. 68, 71, 63 L.Ed. 211 (1918), the Supreme Court stated: The question here is not so much the rights of either party as against the public but their" }, { "docid": "15272676", "title": "", "text": "claim where [a]n extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action ... A state law claim is not preempted if the extra element changes the nature of the action so that it is qualitatively different from a copyright infringement claim. Expediters Int’l of Washington, Inc. v. Direct Line Cargo Mgmt. Svcs., Inc., 995 F.Supp. 468, 479-80 (D.N.J.1998) (quoting Ez-Tixz, Inc. v. Hit-Tix, Inc., 919 F.Supp. 728, 737 (S.D.N.Y.1996) (citation omitted)). For the following reasons, this Court finds that defendant’s counterclaim for unjust enrichment is preempted, but that its counterclaims for unfair competition, breach of contract, conversion, and replev-in are not preempted. 1. Unfair Competition Claim Plaintiff contends that defendant BVHE’s state law unfair competition claim is preempted because it is based on misappropriation, citing to Financial Info., Inc. v. Moody’s Investors Svc., Inc., 808 F.2d 204, 208 (2d Cir.1986) (affirming dismissal of claim under misappropriation and copying branches of New York state unfair competition laws as federally preempted), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987). Plaintiff alleges that “[a]ll of defendant’s state law claims are based upon the premise that the Pro motional. Previews furnished to Video Pipeline belong to Defendant and were misappropriated by Video Pipeline.” Pl.’s Br. at 16. Misappropriation, or “reverse passing off,” is grounded in the alleged unauthorized copying and use of another’s copyrighted expression, and thus fails the extra element, test. See Fundamental Too, Ltd. v. Universal Music Group, Inc., No. Civ. A. 97-1595, 1997 WL 381608, at *4 (E.D.Pa. July 9, 1997); see also Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir.1993) (holding misappropriation claim “grounded solely in the copying of a plaintiffs protected expression” was preempted by § 301 of Copyright Act), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 376 (1994). And, as the Second Circuit in Moody’s Investors determined, “ ‘[Sjtate law claims that rely on the misappropriation branch of unfair competition are preempted.’ ” Moody’s Investors, 808 F.2d at 208 (quoting Warner" }, { "docid": "18624829", "title": "", "text": "competition. There may be unfair competition by misappropriation as well as by misrepresentation, that is, the doctrine of unfair competition has been extended to permit the granting of relief in cases where there was no fraud on the public but where one, for commercial advantage, has misappropriated the benefit or property right of another and has exploited a competitor’s business values. 87 C.J.S. Trade-Marks, Trade-Names and Unfair Competition § 13 (1954); R. Callmann, The Law of Unfair Competition, Trademarks & Monopolies § 60.3 (3d ed. 1968); International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918). Defendants JS&A, Sugarman and Stanke attempt to rebut plaintiff’s argument that they misappropriated plaintiff’s ROM by relying on two Supreme Court decisions, Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), and Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964). The following statement in Compco capsulizes the two decisions: “Today we have held in Sears . . . that when an article is unprotected by a patent or a copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.” 376 U.S. at 237, 84 S.Ct. at 782. Thus, defendants JS&A, Sugarman and Stanke in essence are arguing that International News Service has been overruled sub silentio by Sears and Compco. However, Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), indicates that Sears and Compco did not overrule International News Service and the misappropriation doctrine. R. Callmann, The Law of Unfair Competition, Trademarks & Monopolies § 61.1 (3d ed. Supp.1978). In Goldstein a California statute making it a criminal offense to pirate recordings produced by others was challenged and the Supreme Court held inter alia that the California statute did not violate the" }, { "docid": "18423774", "title": "", "text": "infringement action if prima facia case of infringement is made out). Thus, the Court will first discuss whether the plaintiffs have demonstrated a probability of success on the merits before turning to the issues of irreparable injury and balance of hardships. I. PROBABILITY OF SUCCESS ON THE MERITS A. New York Unfair Competition Claim Plaintiffs’ principal argument offered in support of their application for a preliminary injunction is that the defendants have violated the misappropriation branch of New York’s unfair competition law. The New York law of unfair competition is a “broad and flexible doctrine” encompassing “any form of commercial immorality.” See Roy Export Co. v. Columbia Broadcasting System, 672 F.2d 1095, 1105 (2d Cir.) (quoting Metropolitan Opera Assoc. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 792-96, 101 N.Y.S.2d 483, 488-93 (Sup.Ct.1950), aff'd, 279 A.D. 632, 107 N.Y.S.2d 795 (1951) (per curiam), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982)). The misappropriation branch of New York’s unfair competition law generally concerns the taking and use of the plaintiff’s property to compete against the plaintiff. See id.; see also International News Service v. Associated Press, 248 U.S. 215, 239, 39 S.Ct. 68, 63 L.Ed. 211 (1918). Thus, a defendant can be liable for unfair competition if he misappropriates the “skill, expenditures, and labors of a competitor.” See Flexitized, Inc. v. National Flexitized Corporation, 335 F.2d 774, 781 (2d Cir.1964) (quoting Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.S.2d 556, 567, 190 N.Y.S.2d 977, 986, 161 N.E.2d 197, 203 (1959)). In this case, plaintiffs argue that defendants have misappropriated from the Miami Vice show; (a) the settings, (b) the style, dress and essential expressions of the lead characters, (c) the color patterns and (d) the title. See Plaintiffs Post-Hearing Brief at 4, see also Tr. at 53. Plaintiffs, however, have failed to establish a probability of success on the merits on this claim because this claim is preempted by the federal copyright laws. See 17 U.S.C. § 301 (1982); see also Warner Bros. v. American Broadcasting Co., 720 F.2d 231, 247 (2d Cir. 1983) . Under § 301, a" }, { "docid": "22293342", "title": "", "text": "Explicitly, the argument asserts that the plaintiffs’ claim, nominally based on misappropriation of the Compilation, ultimately rests on appropriation of the films, and that a state law claim based on misappropriation of federally copyrighted materials is preempted under the doctrine of Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). We consider, first, whether CBS’s use of the Compilation is unfair competition under New York law and, second, whether such a state-law claim is preempted in the circumstances of this case. The misappropriation branch of the unfair competition tort traces its lineage to the Supreme Court’s decision in International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), upholding a decision enjoining INS from copying AP’s news bulletins, which AP had compiled at considerable effort and expense, and then selling the pirated information in competition with AP. With the subsequent decline of general federal common law, the doctrine was developed by the states, New York in particular; there it has flourished in a variety of factual settings, see Metropolitan Opera Ass’n v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 792-96, 101 N.Y.S.2d 483, 488-93 (Sup.Ct.1950), aff’d mem., 279 A.D. 632, 107 N.Y.S.2d 795 (1951), despite some early efforts by this Court to limit the doctrine to the narrow circumstances of the INS case, see, e.g., RCA Manufacturing Co. v. Whiteman, 114 F.2d 86, 90 (2d Cir.), cert. denied, 311 U.S. 712, 61 S.Ct. 393, 85 L.Ed. 463 (1940). See generally Developments in the Law—Competitive Torts, 77 Harv.L.Rev. 888, 933-35 (1964). An unfair competition claim involving misappropriation usually concerns the taking and use of the plaintiff’s property to compete against the plaintiff’s own use of the same property, e.g., International News Service v. Associated Press, supra. By contrast, in this case the Compilation was taken and used to compete unfairly against a different property, “The Gentleman Tramp.” Despite the unusual facts, we are satisfied that the plaintiffs have established an unfair" } ]

[ { "docid": "21572540", "title": "", "text": "summary judgment motion, the Claims Court concluded that the duties alleged by the District were not created by the Repayment Contract and, therefore, the District had failed to state a claim for which relief could be granted. Id. at 203-04. ISSUES 1. Whether the Claims Court erred in granting summary judgment. 2. Whether the District’s claim sounds in tort, thus precluding the Claims Court from exercising jurisdiction. OPINION I To recover for breach of contract, a party must allege and establish: (1) a valid contract between the parties, (2) an obligation or duty arising out of the contract, (3) a breach of that duty, and (4) damages caused by the breach. See Giroir v. MBank Dallas, N.A., 676 F.Supp. 915, 918-19 (E.D.Ark.1987); see also Pennsylvania, Dept. of Transp. v. United States, 643 F.2d 758, 762 (Ct.Cl.) (noting “the well-established rule ... that a ‘government contractor bears the burden of establishing the fundamental facts of liability, causation and resultant injury’ ” (citations omitted)), cert. denied, 454 U.S. 826, 102 S.Ct. 117, 70 L.Ed.2d 101 (1981). The District’s complaint was incorrectly recast by the Claims Court as asserting only the specific duties of maintaining the spillways and maintaining the electrical generation facilities. The Claims Court failed to recognize that the District also expressly alleged a contractual duty requiring the government to operate and maintain the entire Joint Works. Complaint at 7, 8, San Carlos Irrigation & Drainage District v. United States, 15 Cl.Ct. 197 (1988). The Claims Court concluded that the Repayment Contract could not be interpreted to show that the damages for lost water and lost electricity sought by the District were within the parties’ contemplation. San Carlos, 15 Cl.Ct. at 202. Reliance upon that conclusion to hold that the District had failed to allege a duty which, if breached, would allow recovery of damages is inappropriate. Such an analysis is relevant to determining whether the District can prove that it has suffered any consequential damages. Cf. Prudential Ins. Co. of Am. v. United States, 801 F.2d 1295, 1300 (Fed.Cir.1986) (holding that consequential or special damages, in order to be recoverable," } ]

[ { "docid": "21997510", "title": "", "text": "noncompliance are ‘an EEOC order that the Department comply with the Agreement’; or reinstatement of the above-captioned EEO [complaint].” Def.’s Mot. Dismiss at 8, n. 4. That is not accurate. The settlement agreement in Stovall provided for the same equitable remedies in the event of breach as here; that is, the agreement provided that if Mr. Stovall believed the agency failed to carry out the terms of the settlement agreement, he “[could] request specific enforcement of the terms or reinstatement of his complaints by writing to [the director of the agency’s Office of Civil Rights]” within 60 days of the date he knew or reasonably should have known of the alleged breach. See Complaint, Exhibit B at 3-4; Stovall, 71 Fed.Cl. 696. The presumption that money damages are the default remedy for breach of contract is not overcome simply because a contract provides for alternate remedies. Defendant also asserts that “Ms. Green-hill’s request for $210,000 in monetary damages is frivolous because the settlement agreement does not provide for monetary damages beyond the $90,000.” Def.’s Mot. Dismiss at 8. However, that argument must also fail. The $90,000 paid pursuant to the settlement agreement related to plaintiffs then pending discrimination claims against DOE. Here, plaintiff is not seeking damages based on the discrimination claims that ostensibly were resolved by the settlement agreement. Nor is plaintiff alleging damages arising out of the conduct of DOE personnel during the time she was employed by DOE. Instead, plaintiff is bringing a new claim, seeking damages she has allegedly suffered due to defendant’s breach of the provisions in the settlement agreement that resulted in the decision by DOJ to rescind an offer of employment. The fact that plaintiff received $90,000 pursuant to the settlement agreement that DOE allegedly later breached may be relevant in computing the damages to which she may be entitled, but her receipt of that sum cannot itself bar her claim for damages. The Court does not disagree that “in the absence of monetary relief, this Court cannot provide equitable relief and cannot reinstate [plaintiff] to her former position with the Government.” Def.’s" }, { "docid": "536493", "title": "", "text": "Granted. 1. Legal Standard on Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. The complaint is construed in the light most favorable to the non-moving party and all material allegations in the complaint are taken to be true. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir.1986). The court, however, is not required to accept legal conclusions cast in the form of factual allegations, if those conclusions cannot reasonably be drawn from the facts alleged. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Conclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim upon which relief may be granted. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988). Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), a plaintiff must do more than recite the elements of the claim and must “provide the grounds of [its] entitlement to relief.” Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1959, 167 L.Ed.2d 929 (2007) (citations omitted). In addition, the pleading must not merely allege conduct that is conceivable, but it must also be plausible. Id. at 1974. 2. Claim for Breach of Contract. In order to state a claim for breach of contract, Jacobsen must allege (1) the existence of a contract; (2) plaintiffs performance or excuse for non-performance; (3) defendants’ breach and damage to plaintiff proximately caused from defendants’ breach. See Acoustics, Inc. v. Trepte Construction Co., 14 Cal. App.3d 887, 913, 92 Cal.Rptr. 723 (1971) (citing 2 Witkin, Cal. Proc., Pleading, § 251). Jacobsen has failed to allege a specific harm that was proximately caused by the alleged breach of the terms of the Artistic License. The Second Amended Complaint merely states that “[b]y reason of the breach, Plaintiff has been harmed” and seeks “rescission, and" }, { "docid": "17631495", "title": "", "text": "well outside Pennsylvania’s four-year state of limitations period for breach of contract claims. Id. ¶¶ 10-11. Plaintiff now alleges that Defendant’s filing of the proof of claim on time-barred debt violates the FDCPA. On February 2, 2015, Plaintiff filed an Amended Complaint in this action, bringing one count, for violation of the FDCPA, 15 U.S.C. §§ 1692e, 1692e(2), (10), and 1692f, and requesting actual damages, statutory damages, and costs and attorney’s fees under § 1692k(a). ECF No. 15. On February 23, 2015, Defendant renewed its motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). ECF No. 20. Plaintiff has submitted her response (ECF No. 21) and Defendant its reply (ECF No. 22). The motion is now ripe for disposition. II. STANDARD OF REVIEW A party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When considering such a motion, the Court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” DeBenedictis v. Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir.2007) (internal quotation marks removed). To withstand a motion to dismiss, the complaint’s “[fjactual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. Although- a plaintiff is entitled to all reasonable inferences from the facts alleged, a plaintiffs legal conclusions are not entitled to deference and the Court is “not bound-to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The pleadings must contain sufficient factual allegations so as to state a facially plausible claim for relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009). “A claim has" }, { "docid": "5288197", "title": "", "text": "Whether Plaintiff Can Recover Damages Cannot Be Decided Now by Summary Disposition Defendant argues, in the alternative, that “[e]ven if Mr. Mata could establish that the Army breached the NSA, ... Mr. Mata still cannot demonstrate all of the elements necessary for him to recover damages.” Def.’s Mot. 26. “Damages for a breach of contract are recoverable where: (1) the damages were reasonably foreseeable by the breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the damages are shown with reasonable certainty.” Ind. Mich. Power Co. v. United States, 422 F.3d 1369, 1373 (Fed.Cir.2005). Defendant contends that plaintiff cannot establish that the damages he seeks either were caused by the Army’s alleged breach of the NSA or were reasonably foreseeable to the Army. Def.’s Mot. 26. Plaintiff does not address defendant’s arguments. Cf. Def.’s Resp. 5 (“Mr. Mata has not presented any facts related to his burden....”). In the Complaint, plaintiff requests monetary damages for lost wages; “any and all equitable ... relief, including reinstatement and promotion;” back pay, front pay and other compensatory damages; and attorney’s fees. Compl. ¶ 54. In his Motion, plaintiff requests additional monetary damages for litigation costs; costs related to lost annual and sick leave; and costs related to maintaining an apartment in Laredo and Temple, Texas—where he currently works as an engineer with the U.S. Department of Veterans’ Affairs (VA)—and weekly travel “to care and maintain his homestead in San Antonio.” Pl.’s Mot. 34-35. As support for its argument that plaintiff cannot establish causality, defendant points to Zulueta v. United States, 2013 WL 363389 (Fed.Cl. Jan. 29, 2013), aff'd, — Fed.Appx. -, 2014 WL 114201 (Fed.Cir. Jan. 14, 2014); cf. Ind. Mich. Power Co., 422 F.3d at 1373 (providing that, in order for a party to recover damages for a breach of contract, the breach must be “a substantial causal factor in the damages”). Similar to the facts in this case, the plaintiff in Zulueta alleged that the government breached a settlement agreement into which the parties had entered to resolve an EEO" }, { "docid": "16414733", "title": "", "text": "RCFC 12(b)(1) also must be GRANTED. C. The government’s RCFC 12(b)(6) motion to dismiss for failure to state a claim 1. Standard of review for RCFC 12(b)(6) motions to dismiss In addition to its claims for damages based on HUD’s refusal to provide plaintiff with Section 8 subsidies and rent increases in the past, plaintiff also argues that HUD should be deemed in breach of its agreement with plaintiff because HUD’s July letter constituted a refusal to either (1) provide Fredericksburg with sufficient assistance to ensure the financial viability of Apartments Northwest as low-income housing or (2) relax or remove the affordability requirements contained in the 1995 agreement. Under the well-settled standard of review for motions under RCFC 12(b)(6), Fredericksburg “must allege facts plausibly suggesting (not merely consistent with) a showing of entitlement to relief.” Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed.Cir.2012) (quotations omitted). The court may deny the government’s motion even where plaintiff’s factual allegations are doubtful in fact, provided that they move beyond the speculative level. Id. at 1367-68 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The court is not, however, required to accept a plaintiff’s legal conclusions, even when couched as factual allegations. Twombly, 550 U.S. at 564, 127 S.Ct. 1955. 2. Fredericksburg has failed to state a claim for anticipatory breach of contract A party antieipatorily repudiates a contract by renouncing a contractual duty before the designated time for performance. See Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1374 (Fed.Cir.2005) (quoting Franconia Assocs. v. United States, 536 U.S. 129, 143, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002)). Repudiation can be effected either by a voluntary affirmative act indicating that the promisor will breach, Franconia Assocs., 536 U.S. at 143, 122 S.Ct. 1993 (citing Restatement (Second) of Contracts § 252 (1981)), or by “a ‘statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach,’” Amber Res. Co. v. United States, 538 F.3d 1358," }, { "docid": "21997508", "title": "", "text": "May Recover Monetary Damages For Breach of the Settlement Agreement. Defendant argues that because the settlement agreement which is the basis of plaintiff’s claim “does not mandate the payment of money damages in the event of a purported breach,” and instead provides for non-monetary equitable remedies in the event DOE breaches the agreement, “the substantive right Ms. Greenhill identifies does not entitle her to money damages.” Def.’s Mot. Dismiss at 7. “As such,” defendant further argues, Ms. Greenhill’s request for $210,000 in monetary damages is frivolous because the settlement agreement does not provide for monetary damages beyond the $90,000, which Ms. Greenhill admits she received. Furthermore, it is well settled that, in the absence of monetary relief, this Court cannot provide equitable relief and cannot reinstate Ms. Greenhill to her former position with the Government, therefore, the Court does not possess jurisdiction to entertain the rest of Ms. Greenhill’s complaint. Id. at 8. Because the Court concludes that the settlement agreement does not preclude recovery of money damages for breach, de-; fendant’s arguments with respect to equitable relief, insofar as they are based on alleged unavailability of monetary relief, fail. In Stovall, the court explained that “for a wide majority of contracts [the requirement that breach be redressable by the payment of money damages] is met by a simple presumption—that damages will be available upon a breach.” Stovall, 71 Fed.Cl. at 700. This presumption is due to the fact that money damages are the default remedy for breach of contract, and “‘[n]ormally contracts do not contain provisions specifying the basis for the award of damages in case of breach, with the exception of provisions governing damages in particular situations, such as liquidated damages for delay or other specified breaches.’” Id. (quoting San Juan City College v. United States, 391 F.3d 1357, 1361 (Fed.Cir.2004)). Defendant attempts to distinguish Stovall, in which the court applied a presumption that damages will be available upon breach in a similar case involving a settlement agreement. Defendant asserts: “[i]n this case [as opposed to in Stovall], the contractual language is clear that Ms. Greenhill’s remedies for" }, { "docid": "7560668", "title": "", "text": "money damages would not be available for a breach. To the contrary, Hurtado has plausibly alleged that the contract for her services as a confidential informant “could fairly be interpreted as contemplating money damages in the event of breach.” Holmes, 657 F.3d at 1315. In fact, Hurtado has alleged that she suffered several economic harms as a result of the government’s failure to provide her with the assistance and protection to which she claims entitlement under the alleged contract. These include attorney’s fees and the expenses of paying a fine in connection with her criminal conviction. Hurtado’s allegations, accordingly, suffice to establish this Court’s jurisdiction. St. Johns Oil Co. v. United States, 12 Cl.Ct. 139, 142 (1987) (jurisdiction established if the plaintiff alleges that it has “sustained an actual financial detriment” as a result of the government’s breach of contract); see also Jumah v. United States, 90 Fed.Cl. 603, 608-09 (2009); Aboo v. United States, 86 Fed.Cl. 618, 625 (2009); SGS-93-003 v. United States, 74 Fed.Cl. 637, 638 (2006) (exercising Tucker Act jurisdiction over breach of contract claims by confidential informants). II. RCFC 12(b)(6) Failure to State a Claim A. Applicable Standards The Court turns now to the government’s motion to dismiss under RCFC 12(b)(6). In ruling on a RCFC 12(b)(6) motion to dismiss, the court accepts as true the complaint’s undisputed factual allegations and construes them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991). While the court must draw all reasonable inferences in favor of the non-moving party, Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed.Cir.2001), the complaint’s “[fjactual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In other words, plaintiffs claim must be plausible on its face. Id. at 570, 127 S.Ct. 1955; Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed.Cir.2009). “A claim has facial" }, { "docid": "7560669", "title": "", "text": "of contract claims by confidential informants). II. RCFC 12(b)(6) Failure to State a Claim A. Applicable Standards The Court turns now to the government’s motion to dismiss under RCFC 12(b)(6). In ruling on a RCFC 12(b)(6) motion to dismiss, the court accepts as true the complaint’s undisputed factual allegations and construes them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991). While the court must draw all reasonable inferences in favor of the non-moving party, Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed.Cir.2001), the complaint’s “[fjactual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In other words, plaintiffs claim must be plausible on its face. Id. at 570, 127 S.Ct. 1955; Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed.Cir.2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In order to recover for a breach of contract, plaintiff must allege: (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by the breach. San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed.Cir.1989). The government’s motion to dismiss in this case centers on the first element of a claim for breach of contract—the existence of a valid contract. It argues that Hurtado has failed to plausibly allege that the government agents and officials with whom she contracted possessed actual authority to obligate the United States to provide her with the assistance and protection she claims she was promised. For the reasons set forth below, the Court concludes that" }, { "docid": "7560670", "title": "", "text": "plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In order to recover for a breach of contract, plaintiff must allege: (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by the breach. San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed.Cir.1989). The government’s motion to dismiss in this case centers on the first element of a claim for breach of contract—the existence of a valid contract. It argues that Hurtado has failed to plausibly allege that the government agents and officials with whom she contracted possessed actual authority to obligate the United States to provide her with the assistance and protection she claims she was promised. For the reasons set forth below, the Court concludes that the government’s arguments are unpersuasive and that the factual allegations in Hurtado’s complaint regarding the existence of a valid contract are sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. B. The Complaint Contains Sufficient Factual Allegations to Support a Claim for Breach of Contract. 1. Hurtado has pled sufficient facts to permit a reasonable inference that government officials promised to provide her with protection and judicial assistance in exchange for her services as a confidential informant. A contract with the United States may be either express or implied-in-fact. An implied-in-fact contract is one “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 67 L.Ed. 816 (1923); see also Hercules, Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d" }, { "docid": "19297848", "title": "", "text": "United States, 935 F.2d 1271, 1274 (Fed.Cir.1991). However, a plaintiff must plead factual allegations that support a facially “plausible” claim to relief in order to avoid dismissal for failure to state a claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). On appeal, Ms. Cambridge contends that the Court of Federal Claims erred in dismissing her complaint. She argues that she is owed an additional award beyond the payments of $1,131.40 and $3,429.14, which she received. According to Ms. Cambridge, she is entitled to an additional award because the information she provided resulted in the IRS eventually recovering taxes due over and above the taxes upon which the rewards she received were based. Relying upon the formula in IRS Publication 733, Ms. Cambridge contends that she is entitled to an additional award payment in the amount of $6,906.55. The government responds that we should affirm the decision of the Court of Federal Claims. It argues that, insofar as any award beyond what she already has received is concerned, Ms. Cambridge failed in the Court of Federal Claims to point to circumstances giving rise to a contract enforceable against the IRS. See Merrick, 846 F.2d at 726 (“An enforceable contract will arise under [26 U.S.C. § 7623 and 26 C.F.R. § 301.7623-1(a) ] only after the informant and the government negotiate and fix a specific amount as the reward.”). II. We see no error in the decision of the Court of Federal Claims. As discussed, in order to assert a valid claim under 26 U.S.C. § 7623 and 26 C.F.R. § 301.7623-1(a), Ms. Cambridge had to allege facts “plausibly” showing, Twombly, 127 S.Ct. at 1974, that the IRS had “negotiate[d] and fix[ed] a specific amount as the reward.” See Merrick, 846 F.2d at 726. In this case, as far as her claim for an additional reward was concerned, Ms. Cambridge plainly failed to allege facts plausibly showing the government had “negotiate^] and fix[ed] a specific amount as the reward.” Ms. Cambridge simply alleged that, based upon information she had provided, the IRS had" }, { "docid": "12512424", "title": "", "text": "to the police power, but according to an administrative border search for security purposes. The court further explained that, if the seizure was unauthorized, then the Court of Federal Claims would lack jurisdiction, because due process and Fourth Amendment claims are reserved for district courts. Finally, the court held that even assuming the government’s actions were authorized and that an unreasonable delay in returning the property amounted to a taking, the court lacks jurisdiction over damage claims for due process violations. Kam-Almaz appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). Discussion To avoid dismissal for failure to state a claim under RCFC 12(b)(6), “a complaint must allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed.Cir.2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The facts as alleged “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). At the same time, a court is “ ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). We review de novo a decision to dismiss a complaint for failure to state a claim under RCFC 12(b)(6). Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1328 (Fed.Cir.2012). We also review de novo the grant or denial of a motion to dismiss for lack of jurisdiction. See Frazer v. United States, 288 F.3d 1347, 1351 (Fed.Cir.2002). I We first address Kam-Almaz’s claim for breach of an implied-in-fact bailment contract. “An implied-in-fact contract with the government requires proof of (1) mutuality of intent, (2) consideration, (3) an unambiguous offer and acceptance, and (4) actual authority on the part of the government’s representative to bind the government in contract.” Hanlin v. United States, 316" }, { "docid": "5288199", "title": "", "text": "complaint filed by the plaintiff. Id. at *1. Relying in part on Holmes, 657 F.3d at 1312-15, the court first found that the settlement agreement was money-mandating and thus the court possessed jurisdiction to hear plaintiffs claims for reinstatement, money damages, and back pay. See Zulueta, 2013 WL 363389 at *5-*7; cf. supra Part I.C (discussing Holmes). The court also found that plaintiff failed to show that the damages she sought arose from the government’s alleged breach of the settlement agreement. Zulueta, 2013 WL 363389 at *7. The court found, instead, that the damages were “relate[d] not to the breach of the Settlement Agreement, but rather to the subsequent actionf] of the [government] in relieving [plaintiff] of her position.” Id.; see id. at *2 (noting that, approximately two months after entering the settlement agreement, the plaintiff was removed from federal service due to her “inability to perform the requirements of her position”). The court therefore granted defendant’s motion to dismiss for failure to state a claim upon which relief could be granted. Id. at *8. Noting a similarity to the Zulueta ease, defendant contends that “all of the alleged damages in Mr. Mata’s complaint and motion relate not to the alleged breach of the settlement agreement, but to his subsequent removal.” Def.’s Mot. 28; see id. at 27 (“All of Mr. Mata’s ‘damages’ are a proximate cause of his removal from federal service, which occurred as a result of his misconduct committed after the execution of the NSA.”); cf. Compl. ¶ 1 (claiming that the Army’s alleged breach of the NSA “eaus[ed] the Plaintiff substantial monetary damages including but not limited to the Plaintiff losing his job of nineteen (19) years as a Professional Engineer in Federal civilian service”); Pl.’s Mot. 33 (arguing that “the Army utilized its breach to remove Mata from his federal career”), 36 (arguing that the Army’s alleged breach of the NSA caused plaintiff “to be removed from his federal career”). Defendant next argues that “Mr. Mata cannot demonstrate that the Army could have reasonably foreseen that he would commit multiple acts of misconduct after the" }, { "docid": "21997507", "title": "", "text": "(even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, — U.S. -,-, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (stating that decisions on such motions to dismiss rest “on the assumption that all the allegations in the complaint are true”); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.2002); Gould Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991); Kama v. United States, 77 Fed.Cl. 294, 298 (2007); Barth v. United States, 28 Fed.Cl. 512, 514 (1993). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. United States Court of Federal Claims Rule (“RCFC”) 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that might affect the outcome of the litigation. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over a material fact is “genuine” only if “a reasonable jury could return a verdict for the nonmoving party.” Id. I. Plaintiff May Recover Monetary Damages For Breach of the Settlement Agreement. Defendant argues that because the settlement agreement which is the basis of plaintiff’s claim “does not mandate the payment of money damages in the event of a purported breach,” and instead provides for non-monetary equitable remedies in the event DOE breaches the agreement, “the substantive right Ms. Greenhill identifies does not entitle her to money damages.” Def.’s Mot. Dismiss at 7. “As such,” defendant further argues, Ms. Greenhill’s request for $210,000 in monetary damages is frivolous because the settlement agreement does not provide for monetary damages beyond the $90,000, which Ms. Greenhill admits she received. Furthermore, it is well settled that, in the absence of monetary relief, this Court cannot provide equitable relief and cannot reinstate Ms. Greenhill to her former position with the Government, therefore, the Court does not possess jurisdiction to entertain the rest of Ms. Greenhill’s complaint. Id. at 8. Because the Court concludes that the settlement agreement does not preclude recovery of money damages for breach, de-; fendant’s arguments with respect" }, { "docid": "21997515", "title": "", "text": "employers. Id. Defendant states, however, that plaintiff “fails to assert that the Government’s alleged breach of the settlement agreement caused the damages she seeks. Furthermore, to the extent that Ms. Greenhill is seeking damages for the Government’s failure to hire her at DOJ, the Court ‘cannot grant monetary relief for the loss of a position to which a federal employee has not been appointed.’”Id. (citing Westover v. United States, 71 Fed.Cl. 635, 640 (2006)). Plaintiff has adequately alleged that DOJ rescinded its offer because of defendant’s breach of the settlement agreement. Plaintiff has also alleged that she lost a position with a private company in August 2004 because of defendant’s actions with respect to the settlement agreement. From the complaint, it appears that plaintiff was working for a private company under contract with the Department of Transportation’s Office of Safety. Plaintiff alleges that she lost that job due to a tax lien, financial difficulties, and an issue with a background investigation, all attributable to “the way the settlement was handled by [DOE].” Complaint at 4. Greater specificity in pleading the essential elements of breach, proximate cause and damages is not required at this stage of the case. See Twombly, 127 S.Ct. at 1964-65. CONCLUSION For the reasons set forth above, defendant’s motion to dismiss for failure to state a claim pursuant to RCFC 12(b)(6), or in the alternative for summary judgment pursuant to RCFC 56, is DENIED. Defendant shall file its answer no later than May 30, 2008. IT IS SO ORDERED. . Defendant has moved, in the alternative, for summary judgment pursuant to RCFC 56 (Def.’s Mot. Dismiss at 1), though its brief focuses on the arguments with respect to the motion to dismiss under RCFC 12(b)(6). As stated at pages 789-91, infra, summary judgment is appropriate when there are no genuine issues of material fact and the movant 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). . It appears defendant may have framed its argument as arising under 12(b)(6) (failure to state" }, { "docid": "19034518", "title": "", "text": "June 19, 2007 email constituted an “offer letter,” despite Ms. Hill’s use of the term in her June 27, 2007 rescission email, id. at 8; or (iii) any of Ms. Branker’s emails to Mr. McCaulley amounted to an “order” within the meaning of FAR 13.004(a), id. at 8-9. Furthermore, Defendant characterized it as “utterly implausible that, by reason of the breach of an alleged agreement that GMIG neither performed nor even began performing, GMIG was damaged in the amount of $900,000, more than double the alleged contract amount.” Id. at 9. Standard of Review In reviewing a motion to dismiss, the Court “must accept all well-pleaded factual allegations as true and draw all reasonable inferences in [Plaintiffs] favor.” Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000). Plaintiff must provide “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Accordingly, Plaintiff must provide more than mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Where “matters outside the pleadings are presented to and not excluded by the court,” the Court may treat a motion to dismiss as a motion" }, { "docid": "19297847", "title": "", "text": "Cambridge still had not specified “any agreement with the IRS or any balance owed.” Id. Because the court found that, as far as her claim for an additional award payment was concerned, Ms. Cambridge had failed to point to an agreement with the IRS, it determined that Ms. Cambridge had failed to state a valid claim for relief. It therefore granted the government’s motion to dismiss pursuant to RCFC 12(b)(6). DISCUSSION I. We have jurisdiction over Ms. Cambridge’s appeal pursuant to 28 U.S.C. § 1295(a)(3). Whether the Court of Federal Claims properly dismissed Ms. Cambridge’s complaint for failure to state a claim upon which relief could be granted is an issue of law which we review de novo. Dehne v. United States, 970 F.2d 890, 892 (Fed.Cir.1992). In ruling on a 12(b)(6) motion to dismiss, the court must accept as true the complaint’s undisputed factual allegations and should construe them in a light most favorable to the plaintiff. Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991). However, a plaintiff must plead factual allegations that support a facially “plausible” claim to relief in order to avoid dismissal for failure to state a claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). On appeal, Ms. Cambridge contends that the Court of Federal Claims erred in dismissing her complaint. She argues that she is owed an additional award beyond the payments of $1,131.40 and $3,429.14, which she received. According to Ms. Cambridge, she is entitled to an additional award because the information she provided resulted in the IRS eventually recovering taxes due over and above the taxes upon which the rewards she received were based. Relying upon the formula in IRS Publication 733, Ms. Cambridge contends that she is entitled to an additional award payment in the amount of $6,906.55. The government responds that we should affirm the decision of the Court of Federal Claims. It argues that, insofar as any award beyond what she already has received is" }, { "docid": "7657840", "title": "", "text": "that same day. Ms. Burnett subsequently demanded that Mr. Woodall release the Notice of Default but he refused, indicating he intended to proceed with a trustee’s sale of her property. The sale occurred on May 19, 2009. On the day of the sale, Ms. Burnett filed this action against MERS, Mr. Woodall, and fifty unidentified individuals who were unknown to Ms. Burnett. She sought damages and declaratory relief for alleged violations of the FDCPA and the UCSPA, a breach of duty by Mr. Woodall, a claim predicated on § 57-1-31 of the Utah Code, which governs trust deeds, and a slander of title claim. Ms. Burnett did not serve MERS nor any of the unidentified individuals named as defendants. Mr. Woodall moved to dismiss the complaint for failing to state a claim upon which relief can be granted. See Fed. R.Civ.P. 12(b)(6). The district court granted the motion, dismissing all of Ms. Burnett’s claims against Mr. Woodall and dismissing the case with prejudice. II. A. PLEADING STANDARDS We review a district court’s dismissal under Rule 12(b)(6) de novo. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). We accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009). Under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Two working principles underlie this standard. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Thus, mere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause" }, { "docid": "5288198", "title": "", "text": "reinstatement and promotion;” back pay, front pay and other compensatory damages; and attorney’s fees. Compl. ¶ 54. In his Motion, plaintiff requests additional monetary damages for litigation costs; costs related to lost annual and sick leave; and costs related to maintaining an apartment in Laredo and Temple, Texas—where he currently works as an engineer with the U.S. Department of Veterans’ Affairs (VA)—and weekly travel “to care and maintain his homestead in San Antonio.” Pl.’s Mot. 34-35. As support for its argument that plaintiff cannot establish causality, defendant points to Zulueta v. United States, 2013 WL 363389 (Fed.Cl. Jan. 29, 2013), aff'd, — Fed.Appx. -, 2014 WL 114201 (Fed.Cir. Jan. 14, 2014); cf. Ind. Mich. Power Co., 422 F.3d at 1373 (providing that, in order for a party to recover damages for a breach of contract, the breach must be “a substantial causal factor in the damages”). Similar to the facts in this case, the plaintiff in Zulueta alleged that the government breached a settlement agreement into which the parties had entered to resolve an EEO complaint filed by the plaintiff. Id. at *1. Relying in part on Holmes, 657 F.3d at 1312-15, the court first found that the settlement agreement was money-mandating and thus the court possessed jurisdiction to hear plaintiffs claims for reinstatement, money damages, and back pay. See Zulueta, 2013 WL 363389 at *5-*7; cf. supra Part I.C (discussing Holmes). The court also found that plaintiff failed to show that the damages she sought arose from the government’s alleged breach of the settlement agreement. Zulueta, 2013 WL 363389 at *7. The court found, instead, that the damages were “relate[d] not to the breach of the Settlement Agreement, but rather to the subsequent actionf] of the [government] in relieving [plaintiff] of her position.” Id.; see id. at *2 (noting that, approximately two months after entering the settlement agreement, the plaintiff was removed from federal service due to her “inability to perform the requirements of her position”). The court therefore granted defendant’s motion to dismiss for failure to state a claim upon which relief could be granted. Id. at *8." }, { "docid": "5288200", "title": "", "text": "Noting a similarity to the Zulueta ease, defendant contends that “all of the alleged damages in Mr. Mata’s complaint and motion relate not to the alleged breach of the settlement agreement, but to his subsequent removal.” Def.’s Mot. 28; see id. at 27 (“All of Mr. Mata’s ‘damages’ are a proximate cause of his removal from federal service, which occurred as a result of his misconduct committed after the execution of the NSA.”); cf. Compl. ¶ 1 (claiming that the Army’s alleged breach of the NSA “eaus[ed] the Plaintiff substantial monetary damages including but not limited to the Plaintiff losing his job of nineteen (19) years as a Professional Engineer in Federal civilian service”); Pl.’s Mot. 33 (arguing that “the Army utilized its breach to remove Mata from his federal career”), 36 (arguing that the Army’s alleged breach of the NSA caused plaintiff “to be removed from his federal career”). Defendant next argues that “Mr. Mata cannot demonstrate that the Army could have reasonably foreseen that he would commit multiple acts of misconduct after the execution of the NSA that would result in two [fourteen]-day suspensions and his ultimate removal from Army employment.” Def.’s Mot. 28; cf. Ind. Mich. Power Co., 422 F.3d at 1373 (providing that, in order for a party to recover damages for a breach of contract, the damages must be “reasonably foreseeable by the breaching party at the time of contracting”). Defendant adds that plaintiff cannot “demonstrate that it was reasonably foreseeable that he would obtain employment at another Federal agency, or that doing so would supposedly require him to pay for two homes.” Def.’s Mot. 28. The court finds defendant’s arguments on this issue to be persuasive. But because plaintiff has not addressed them in his briefing, the court finds that the issue of whether plaintiff can recover damages for the Army’s alleged breach of paragraph 3b of the NSA is not currently amenable to summary resolution. See RCFC 56(e) (providing that “[i]f a party ... fails to properly address another party’s assertion of fact as required by RCFC 56(c), the court may ... give" }, { "docid": "11254446", "title": "", "text": "relief, Fed.R.Civ.P. 8(a) requires that the complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While Fed.R.Civ.P. 8 “does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Pleadings offering mere “ ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation^]’ ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Attain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Further, “[flactual allegations must be enough to raise a fight to relief above the speculative level[.]” Id. Accordingly, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949. A claim is plausible where “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. (citing Fed. Rule Civ. Proc. 8(a)(2)). III. ANALYSIS A. Breach of Contract (Count I) To prevail on a breach of contract claim, a plaintiff must.prove: (1) the existence of a binding contract; (2) that the non-breaching party performed its contractual obligations; (3) that the other party failed to fulfill its contractual obligations without legal excuse; and (4) that" } ]

[ { "docid": "355301", "title": "", "text": "by a competent patent examiner in deciding whether to issue a patent on the Rotostrainer; and that Welles’s breach of his affirmative duty to bring the withheld information to the attention of the examiner destroys any presumption of validity to which the patent would otherwise be entitled and renders the Welles ’548 patent unenforceable. In another section of the opinion, the trial court separately concluded, “Welles’s failure to cite the Johnson catalog and the public use of the Rotostrainer prior to January 21, 1973, was material and intentional and constitutes fraud on the patent office, rendering invalid the Welles ’548 patent.” An applicant for a patent is under a duty of candor in dealing with the PTO. One of our predecessor courts analyzed the relationship of trust that must exist between the PTO and those wishing to receive patent protection for inventions. The court said, “[t]he highest standards of honesty and candor on the part of applicants in presenting such facts to the office are thus necessary elements in a working patent system. We would go so far to say they are essential.” Norton v. Curtiss, 433 F.2d 779, 794, 167 USPQ 532, 544 (CCPA 1970). A breach of the duty of candor owed to the PTO, that prevents the grant of a patent or causes it to be held invalid or unenforceable, occurs when material information is misrepresented or withheld, and such misrepresentation or withholding is intentional or accompanied by gross negligence or bad faith. Our review of the trial court’s findings of fact and conclusions of law focuses on whether this case presents exceptional circumstances under 35 U.S.C. § 285. That is, did Welles and his patent counsel by breaching their duty of candor to the PTO by fraud, bad faith, or gross negligence, meet the “exceptional” case requirement. Fraud must be proved by clear and convincing evidence. Orthopedic Equipment Co. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 217 US.PQ 1281 (Fed.Cir.1983); Norton, 433 F.2d at 797, 167 USPQ at 546-47; See Miller, Fraud on the PTO, 58 JPOS 271 (1976). Further, “an applicant’s misrepresentation or failure" } ]

[ { "docid": "17821514", "title": "", "text": "by the parties, the court held a three-day bench trial in November 2008 on Limelight’s remaining equitable defenses. III. Discussion A. Inequitable Conduct During Prosecution of the '703 Patent Limelight asserts that the applicants for the '703 patent and/or their attorney: (1) had a duty to, but intentionally failed to, investigate the prior art of their key competitor Sandpiper; and (2) intentionally withheld material from the PTO concerning Sandpiper’s Footprint 1.0 CDN. It claims that these actions breached the duty of candor and good faith owed to the PTO and thereby constitute inequitable conduct rendering the patent unenforceable. Although I find that the information that was not disclosed was material, Limelight has failed to prove the requisite intent necessary to find inequitable conduct. 1. The Legal Standard for Inequitable Conduct Applicants have a duty to prosecute patent applications with candor, good faith, and honesty. Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1099 (Fed.Cir.2003); see also 37 C.F.R. § 1.56. A breach of this duty constitutes inequitable conduct and renders a patent unenforceable. See Impax Labs., Inc. v. Aventis Pharms., Inc., 468 F.3d 1366, 1374 (Fed.Cir.2006). To prove inequitable conduct, “the alleged infringer must provide clear and convincing evidence of (1) affirmative misrepresentations of a material fact, failure to disclose material information, or submission of false material information and (2) an intent to deceive.” Id. The analysis of inequitable conduct is a two-step process. First, the court must determine whether both the materiality of the information and the intent to deceive have been established. Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 326 F.3d 1226, 1234 (Fed.Cir.2003). If so, it must then “weigh them to determine whether the equities warrant a conclusion that inequitable conduct occurred.” Id. (quoting Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995)). In balancing, a greater showing of one factor can compensate for a lesser showing of the other. Id. a. Materiality Information is material if a reasonable examiner would consider it important in deciding whether to allow the patent application. Digital Control, Inc. v. Charles Mach. Works, 437 F.3d 1309, 1314 (Fed.Cir.2006) (citations" }, { "docid": "22148946", "title": "", "text": "court ignored secondary indicia of nonobviousness, including the fact that “every known manufacturer of acrylamide now uses a one-step catalytic process.” However, the fact is that Sohio has never licensed the Greene reissue patent to any of these manufacturers, and Sohio itself never used the process commercially. There evidently being no “secondary considerations” respecting the actual invention of claim 2, the district court’s conclusion of obviousness of the subject matter of claim 2 was entirely correct. C. Attorney Fees Section 285 of Title 35 provides that a district court “in exceptional cases may award reasonable attorney fees to the prevailing party.” In this case, both parties sought attorney fees in the court below, Sohio accusing Cyanamid of willful infringement and Cyanamid accusing Sohio of bringing a “baseless” infringement suit. Cyanamid also asserted that Sohio consciously failed to disclose the Watanabe reference during prosecution of the original patent application and misrepresented to the PTO the date when it first became aware of the Watanabe reference. The district court found that neither Dr. Greene nor any other agent of Sohio was guilty of fraud or gross negligence in the PTO, concluding instead that a finding of simple negligence or oversight was more appropriate. Although a finding of inequitable conduct or “fraud in the Patent and Trademark Office” is often a basis for a district court to find that a ease is “exceptional,” it is not a prerequisite to an award of attorney fees under § 285. Circumstances other than inequitable conduct in the procurement of a patent may support a finding of an “exceptional” case. Other exceptional circumstances include willful infringement, misconduct during litigation, vexatious or unjustified litigation, or a frivolous suit. See, e.g., Bayer Aktiengesellschaft v. Duphar International Research B.V., 738 F.2d 1237, 1242, 222 USPQ 649, 652 (Fed.Cir.1984); Hughes v. Novi American, Inc., 724 F.2d 122, 125, 220 USPQ 707, 710 (Fed.Cir.1984); Stickle v. Heublein, Inc., 716 F.2d 1550, 1564, 219 USPQ 377, 387 (Fed.Cir.1983); Orthopedic Equipment Co. v. All Orthopedic Appliances, 707 F.2d 1376, 1384, 217 USPQ 1281, 1287 (Fed.Cir.1983). The district court, so far as we can determine," }, { "docid": "17802237", "title": "", "text": "Hoist, 725 F.2d at 1362; B.W.B. Controls, 626 F.Supp. at 1569; 35 U.S.C. § 282 (1976). Information “is material where there is [1] a substantial likelihood that [2] a reasonable examiner [3] would consider it important [4] in deciding to allow the application to issue as a patent.” J.P. Stevens, 747 F.2d at 1559; American Hoist, 725 F.2d at 1362; 37 CFR § 1.56(a) (1985). In addition, the burden of proof to establish inequitable conduct before the PTO is on the party alleging the inequitable conduct. The party asserting inequitable conduct must demonstrate that inequitable conduct by clear and convincing evidence. 37 CFR § 1.56(d) (1985). Similarly, any failure to meet the duty of candor must be proven by evidence of bad faith or gross negligence. Id. However, “An applicant’s failure to meet his ‘duty to disclose to the office information ... which is material will not in itself render a patent invalid or unenforceable.’ ” American Hoist, 725 F.2d at 1364. Inequitable conduct may only be determined by a careful balancing of intent in light of materiality. J.P. Stevens, 747 F.2d 1560; American Hoist, 725 F.2d at 1364. Once the balancing is completed the court must “determine as a matter of law whether the scales tilt to a conclusion that inequitable conduct occurred.” Id. The defendant makes a myriad of accusations directed at proving inequitable conduct before the PTO. All of the allegations of inequitable conduct before the PTO or breach of the duty of candor are similar in content and fail for similar reasons. The information introduced by the defendant to demonstrate inequitable conduct before the PTO does not meet the definition of “material”. In the real world the patent examiner who examined the ’201 and ’837 patent applications had many prior art references before him. All of the prior art and other evidence which the defendant has produced lack any significant difference from the totality of references before the patent examiner. Information which is “merely cumulative is not material.” J.P. Stevens, 747 F.2d at 1560, citing Kimberly-Clark Corp v. Johnson & Johnson, 745 F.2d 1437, 1455-56 (Fed.Cir.1984)." }, { "docid": "4238070", "title": "", "text": "district court concluded: “In light of the information disclosed to the examiner, San-del and Universal have not shown that any material misstatement or omission by Honeywell during the prosecution of the patents in suit [evinces] an intent to deceive.” Final Decision, 343 F.Supp.2d at 312. Applicants for patents have a duty to prosecute patent applications in the Patent Office with candor, good faith, and honesty. Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995); see also 37 C.F.R. § 1.56. A breach of this duty — including affirmative misrepresentations of material facts, failure to disclose material information, or submission of false material information — coupled with an intent to deceive, constitutes inequitable conduct. See Molins, 48 F.3d at 1178. In determining whether inequitable conduct occurred, a trial court must determine whether the party asserting the inequitable conduct defense has shown by clear and convincing evidence that the alleged nondisclosure or misrepresentation occurred, that the nondisclosure or misrepresentation was material, and that the patent applicant acted with the intent to deceive the United States Patent and Trademark Office. Glaxo Inc. v. Novopharm Ltd., 52 F.3d 1043, 1048 (Fed.Cir.1995). The nondisclosure or misrepresentation must meet threshold levels of both materiality and intent. Molins, 48 F.3d at 1178. Once the threshold levels of materiality and intent have been established, the trial court must weigh materiality and intent to determine whether the equities warrant a conclusion that inequitable conduct occurred. Id. The more material the information misrepresented or withheld by the applicant, the less evidence of intent will be required in order to find inequitable conduct. N.V. Akzo v. E.I. DuPont de Nemours, 810 F.2d 1148, 1153, (Fed.Cir.1987). This court reviews all of these underlying factual determinations for clear error. Glaxo, 52 F.3d at 1048. On appeal, Sandel challenges the district court’s determination that the Gulfstream documentation and George article were not material. Information is material “if there is a ‘substantial likelihood that a reasonable examiner would have considered the information important in deciding whether to allow the application to issue as a patent.’ ” Halliburton Co. v. Schlumberger Tech. Corp., 925 F.2d" }, { "docid": "16578112", "title": "", "text": "the patent application. Edison Tse Decl. ¶ 14(b). He has not contended, however, that his knowledge was accessible to the public. Thus, Edison Tse’s knowledge of the SMS mount is not likely to invalidate the mechanical patent. c. Objections to Both Patents Defendants also contend that both patents are unenforceable because the plaintiff engaged in inequitable conduct in acquiring the patents. Patent applicants owe a duty of good faith and candor to the United States Patent and Trademark Office (“PTO”). 37 C.F.R. § 1.56. “Inequitable conduct includes affirmative misrepresentation (sic) of material fact, failure to disclose material information, or submission of false material information, coupled with an intent to deceive.” Molins PLC v. Textron, Inc., 48 F.3d 1172 (Fed.Cir.1995). Defendants assert that the plaintiff withheld or misrepresented material information regarding the prior art, sale and publication of the invention, and the identity of the inventor. The allegations of inequitable conduct are based on the same facts as the challenges to validity. As discussed above, the plaintiff has rebutted each allegation and made a preliminary showing that the defendants’ challenges to the patent’s validity will fail. Thus, it is likely that the defendants’ arguments regarding inequitable conduct will also fail. 2. Infringement In addition to demonstrating a likelihood of success on validity, the plaintiff also must establish a likelihood of success on infringement. The plaintiff has submitted the affidavit of Frederick W. Dour that compares the allegedly infringing materials with the patented products. Dour concludes that Top Stamp’s materials infringe both the design and mechanical patent. The defendants have not submitted any analysis to contradict Dour’s affidavit. They apparently do not dispute that their product infringes both patents. Instead, they argue that the patents are invalid. Based on the uncontradicted analysis contained in the Dour affidavit, the court concludes that the plaintiff has demonstrated a reasonable likelihood of success on infringement. C. Irreparable Harm “[W]here validity and continuing infringement have been clearly established ... immediate and irreparable harm is presumed.” Smith Int’l Inc. v. Hughes Tool Co., 718 F.2d 1573 (Fed.Cir.) cert. denied 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d" }, { "docid": "7734783", "title": "", "text": "Bristol filed suit against RPR in the United States District Court for the Southern District of New York seeking a declaratory judgment that it does not infringe the '277 reissue patent and that the patent is invalid and unenforceable. RPR subsequently filed suit against Bristol in the United States District Court for the District of Delaware asserting infringement. The suit was transferred and consolidated with Bristol’s New York case. In March 2001, the district court held a two-day evidentiary hearing on claim construction and interpretation of the JACS article. The court issued an opinion finding by clear and convincing evidence that the inventors failed to provide material information by not providing the PTO with the JACS article during the prosecution of the 'Oil patent and that the Examiner did not review the article prior to issuing the 'Oil patent. Thereafter, in November 2001, the court held a four-day bench trial on the issue of RPR’s intent. The court found by clear and convincing evidence that RPR procured the 'Oil and '277 patents by inequitable conduct by intentionally withholding material information from the PTO with intent to mislead and, therefore, held that the '277 patent is unenforceable. The court also denied RPR’s motion for summary judgment on infringement under 35 U.S.C. § 271(f)(1) and (2), and subsequently declared the case exceptional and awarded Bristol costs and reasonable attorney fees to be determined by the court. RPR filed a timely appeal and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II It is well settled that patent applicants are required to.prosecute patent applications “with candor, good faith, and honesty.” Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178, 33 USPQ2d 1823, 1826 (Fed.Cir.1995). A breach of this duty can take several forms: “affirmative misrepresentation of a material fact, failure to disclose material information, or submission of false material information.” Id. Further, a breach of this duty, when coupled with an intent to deceive or mislead the PTO, constitutes inequitable conduct, which, when proven, renders the patent unenforceable. Id. at 1178, 48 F.3d 1172, 33 USPQ2d at 1827. To establish RPR’s inequitable" }, { "docid": "23547650", "title": "", "text": "result of its inequitable conduct determination, the trial court enjoined Purdue from enforcing the ’912, ’295, and ’042 patents, id., and entered final judgment pursuant to Fed.R.Civ.P. 54(b). Purdue took a timely appeal from the trial court’s inequitable conduct judgment; Endo filed a cross-appeal from the trial court’s infringement judgment. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION A. Inequitable Conduct Applicants for patents have a duty to prosecute patents in the PTO with candor and good faith, including a duty to disclose information known to the applicants to be material to patentability. 37 C.F.R. § 1.56(a) (2004); see also Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995). A breach of this duty may constitute inequitable conduct, which can arise from an affirmative misrepresentation of a material fact, failure to disclose material information, or submission of false material information, coupled with an intent to deceive or mislead the PTO. Molins, 48 F.3d at 1178. A party asserting that a patent is unenforceable due to inequitable conduct must prove materiality and intent by clear and convincing evidence. Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 872 (Fed.Cir.1988). Once threshold findings of materiality and intent are established, the trial court must weigh them to determine whether the equities warrant a conclusion that inequitable conduct occurred. Molins, 48 F.3d at 1178. This requires a careful balancing: when the misrepresentation or withheld information is highly material, a lesser quantum of proof is needed to establish the requisite intent. See N.V. Akzo v. E.I. DuPont de Nemours, 810 F.2d 1148, 1158 (Fed.Cir.1987). In contrast, the less material the information, the greater the proof must be. See id. We review the trial court’s rulings on inequitable conduct deferentially. The court’s factual findings regarding materiality and intent are reviewed for clear error, and thus will not be disturbed on appeal unless this court has a “definite and firm conviction” that a mistake has been made. Kingsdown, 863 F.2d at 872. The trial court’s ultimate conclusion that inequitable conduct has occurred is reviewed for an abuse of discretion. Id. 1. Materiality In" }, { "docid": "16578111", "title": "", "text": "publicly accessible form in the United States. 35 U.S.C. § 102 (emphasis added). The defendants have not identified any authority for including an item in public use in a foreign country within the definition of prior art. Therefore, the fact that the mount was known in foreign countries does not invalidate the patent. The defendants have also not provided any evidence that the SMS mount is identified in a printed publication or patented. Thus, the challenges to the mechanical patent’s validity based on the prior art are likely to fail. Defendants also contend that the item is unpatentable because it “was known” in this country before Steven Sculler invented it. 35 U.S.C. § 102. Only “knowledge or use which is accessible to the public” is included within the purview of 35 U.S.C. § 102. Carella v. Starlight Archery and Pro Line Co., 804 F.2d 135, 139 (Fed.Cir.1986). Edison Tse, Wilson’s Tse’s brother, is a resident of California. He alleges that he knew about the SMS mount prior to September, 1993, when Sculler and Wall filed the patent application. Edison Tse Decl. ¶ 14(b). He has not contended, however, that his knowledge was accessible to the public. Thus, Edison Tse’s knowledge of the SMS mount is not likely to invalidate the mechanical patent. c. Objections to Both Patents Defendants also contend that both patents are unenforceable because the plaintiff engaged in inequitable conduct in acquiring the patents. Patent applicants owe a duty of good faith and candor to the United States Patent and Trademark Office (“PTO”). 37 C.F.R. § 1.56. “Inequitable conduct includes affirmative misrepresentation (sic) of material fact, failure to disclose material information, or submission of false material information, coupled with an intent to deceive.” Molins PLC v. Textron, Inc., 48 F.3d 1172 (Fed.Cir.1995). Defendants assert that the plaintiff withheld or misrepresented material information regarding the prior art, sale and publication of the invention, and the identity of the inventor. The allegations of inequitable conduct are based on the same facts as the challenges to validity. As discussed above, the plaintiff has rebutted each allegation and made a preliminary showing" }, { "docid": "17802236", "title": "", "text": "the Generation III CDI system before the grant of the ’837 patent. Therefore, the defendant should have intervening rights as to claims 6-10 of the United States Patent No. Re. 31,837. Intervening rights is an equitable doctrine. Seattle Box, 756 F.2d at 1579. The extent of the intervening rights is left to the broad equity powers of the court. Id. In this case, the Court believes that the intervening rights should extend to the date of the grant of the reissue and not beyond. Therefore, the defendant’s intervening rights as to claims 6-10 of the ’837 patent extend from July 19, 1977 until February 26,1985 under section 252 of Title 35 of the United States Code. INEQUITABLE CONDUCT There is a two-prong test for establishing inequitable conduct before the PTO; (1) the information withheld must be material; and (2) the misrepresentation must be intentional. J.P. Stevens & Co., Inc. v. Lex Tex LTD, Inc., 747 F.2d 1553, 1559, 223 USPQ 1089 (Fed.Cir.1984), cert. denied, — U.S. -, 106 S.Ct. 73, 88 L.Ed.2d 60 (1985); American Hoist, 725 F.2d at 1362; B.W.B. Controls, 626 F.Supp. at 1569; 35 U.S.C. § 282 (1976). Information “is material where there is [1] a substantial likelihood that [2] a reasonable examiner [3] would consider it important [4] in deciding to allow the application to issue as a patent.” J.P. Stevens, 747 F.2d at 1559; American Hoist, 725 F.2d at 1362; 37 CFR § 1.56(a) (1985). In addition, the burden of proof to establish inequitable conduct before the PTO is on the party alleging the inequitable conduct. The party asserting inequitable conduct must demonstrate that inequitable conduct by clear and convincing evidence. 37 CFR § 1.56(d) (1985). Similarly, any failure to meet the duty of candor must be proven by evidence of bad faith or gross negligence. Id. However, “An applicant’s failure to meet his ‘duty to disclose to the office information ... which is material will not in itself render a patent invalid or unenforceable.’ ” American Hoist, 725 F.2d at 1364. Inequitable conduct may only be determined by a careful balancing of intent in" }, { "docid": "19654956", "title": "", "text": "has been made. Impax Labs., Inc. v. Aventis Pharm. Inc., 468 F.3d 1366, 1375 (2006) (citations omitted). Applicants for patents have a duty to prosecute patent applications in the Patent Office with candor, good faith, and honesty. A breach of this duty-including affirmative misrepresentations of material facts, failure to disclose material information, or submission of false material information-coupled with an intent to deceive, constitutes inequitable conduct. In determining whether inequitable conduct occurred, a trial court must determine whether the party asserting the inequitable conduct defense has shown by clear and convincing evidence that the alleged nondisclosure or misrepresentation occurred, that the nondisclosure or misrepresentation was material, and that the patent applicant acted with the intent to deceive the United States Patent and Trademark Office. Honeywell Int’l Inc. v. Universal Avionics Sys. Corp., 488 F.3d 982, 999 (Fed.Cir.2007) (citations omitted). I. Patents No Longer In Suit On appeal, appellants argue that the district court erred by ruling four patents no longer asserted against Osram— the '345 patent, the '690 patent, the '067 patent, and the '342 patent — unenforceable. Appellants argue that the district court should have first considered whether there was a sufficiently close relationship between the patents in suit and the patents that Osram alleged were unenforceable due to inequitable conduct before considering whether the patents not in suit were unenforceable for inequitable conduct. In addition, appellants argue that in the case of the '345 and '690 patents, the Fiene affidavit was not material because the examiner in those applications did not request an affidavit from a disinterested party and Osram failed to demonstrate any error in the affidavit. Osram responds that a patent must be found unenforceable before turning to the question whether it taints other related patents. Osram then argues that it would be “impractical” for the district court to evaluate the issues in the order suggested by appellants, but fails to elaborate on that theory. Osram does not directly address the materiality of the Fiene affidavit. We conclude that the district court did not abuse its discretion in holding that Nilssen engaged in inequitable conduct with" }, { "docid": "9960038", "title": "", "text": "connection with any previous application upon which the application relies, or (2) that there was any violation of the duty of disclosure through bad faith or gross negligence in connection with the application, or in connection with any previous application upon which the application relies. 21. Inequitable conduct practiced with respect to one patent with a group of closely related and commonly asserted patents renders other patents within that same group unenforceable. See Keystone Driller Co. v. General Excavator, 290 U.S. 240, 246-47, 54 S.Ct. 146, 148, 78 L.Ed. 293 (1933). Thus, any inequitable conduct with respect to any of the patents in suit renders the others unenforceable as well. Since the ’846 and the ’250 patents issued from a single patent application and the ’250 patent relies upon the ’846 patent application for priority the inequitable conduct as to the ’846 patent application would also bar enforcement of the ’250 patent. 22. In order to show a violation of the duty of disclosure or candor, Comm Scope has the burden of showing by clear and convincing evidence (1) prior art or other information that was not called to the attention of the Examiner that was material to the examination of the patent applications that resulted in the patents in suit; (2) knowledge chargeable to an individual substantially involved in the preparation or prosecution of the patent applications of that prior art and of the prior art or information’s materiality; and (3) failure of the applicant to disclose the art or information resulting from an intent to mislead the Examiner or gross negligence. FMC Corp. v. Manitowoc Co., 835 F.2d 1411, 1415, 5 U.S.P.Q.2d 1112, 1115 (Fed.Cir.1987). However, intent to mislead need not be proven by direct evidence but may be shown by gross negligence or by showing acts the natural consequences of which are ■presumably intended by the actor. In J.P. Stevens & Co. v. Lex Tex Ltd., 747 F.2d 1553, 1560, 223 U.S.P.Q. 1089, 1092 (Fed.Cir.1984), the Court stated: “Inequitable conduct” also requires proof of a threshold intent. That intent need not be proven with direct evidence. Hycor" }, { "docid": "8213728", "title": "", "text": "the 667 Patent are invalid based on anticipation by prior art and obviousness. B. Patent Unenforceability Levenger also argues that the Feldman Patents, in addition to being invalid, are also unenforceable on the following two separate grounds: 1) because of the Feld-mans’ inequitable conduct before the USP-TO, and 2) because the Feldmans misused their patents by violating the patent exhaustion doctrine. 1. Unenforceability due to defendants’ inequitable conduct during the patent application process The Feldman Patents, even if valid, are unenforceable because the Feldmans engaged in inequitable conduct before the USPTO by failing to disclose the more relevant Flic notebook to the USPTO. Despite my finding of patent invalidity, it is necessary to address the merits of this challenge to the Feldman Patents as a finding of unenforceability on these grounds impacts the analysis of other claims made by the parties, including any refund of royalties paid and attorneys fees owed to Levenger. Patent applicants have a duty to treat the USPTO with candor and good faith, which includes the duty to disclose information known to the applicant to be material to patentability. 37 C.F.R. § 1.56(a) (2004); see also Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995). Inequitable conduct may be found when a patentee or his attorney breaches this duty of disclosure by failing to disclose material information with the intent to mislead or deceive. Molins PLC 48 F.3d at 1178. As a threshold, the challenger must prove two prongs: 1) that the information withheld was material and 2) that the withholding was done with an intent to deceive. See Molins PLC 48 F.3d at 1178 (citing Allen Organ Co. v. Kimball Int’l, 839 F.2d 1556, 1567 (Fed.Cir.1988)). Once these threshold findings of materiality and intent are established, the Court must then weigh them to determine whether the equities warrant a conclusion that inequitable conduct occurred. Id. (citing J.P. Stevens & Co. v. Lex Tex, Ltd., 747 F.2d 1553, 1559-60 (Fed.Cir.1984)). The more material the withheld information is, the less important it is for the challenger to prove the strength of the intent prong. Purdue Pharma" }, { "docid": "23313677", "title": "", "text": "awarding attorney fees pursuant to 35 U.S.C. § 285. The fraud or inequitable conduct issues may be considered mooted by our conclusion stated above, but these issues remain alive as to the claim for attorney fees. AOA contends that OEC had knowledge of prior art references relating to the use of “Velcro” in orthopedic soft goods, but deliberately withheld such information during prosecution of the '858 patent before the PTO. The basis of AOA’s contention rests in prior patent infringement litigation in which an OEC product was alleged to infringe upon the ’327 Beard Patent owned by Richards Manufacturing Company. The subject matter of that suit involved an orthopedic device, a pelvic traction belt, which used “Velcro” and “Velfoam” to provide universality of application. OEC cited a substantial number of prior art references to that district court and succeeded in having the ’327 Beard patent held invalid for obviousness. In the contemporaneous prosecution of its ’858 patent before the PTO, however, OEC failed to cite the prior art references discovered in the ’327 Beard patent litigation. Establishing that a patent was procured by fraud or with such egregious conduct as to render it unenforceable requires clear, unequivocal, and convincing evidence of an intentional misrepresentation or withholding of a material fact from the PTO. E.g., Square Liner 360°, Inc, v. Chisum, 691 F.2d 362, 374, 216 USPQ 666, 674-75 (8th Cir.1982); Oetiker v. Jurid Werke GmbH, 671 F.2d 596, 600, 215 USPQ 21, 24 (D.C.Cir.1982); E.I. duPont de Nemours & Co. v. Berkley & Co., 620 F.2d 1247, 1274, 205 USPQ 1, 22-23 (8th Cir.1980). Although inequitable conduct requires less stringent proofs as to both materiality and intent than common law fraud, mere evidence of simple negligence, oversight, or an erroneous judgment made in good faith not to disclose prior art is not sufficient to render a patent unenforceable. Oetiker v. Jurid Werke GmbH, supra. The district court found that OEC failed to disclose prior art pertaining to “Velcro” uses in the orthopedic soft goods industry, but it did not believe that an intent to defraud was established by clear, unequivocal," }, { "docid": "4702330", "title": "", "text": "invalidity where failure to disclose best mode); Refac Int’l, Ltd. v. IBM, 689 F.Supp. 422, 431-32 (D.N.J. 1988), aff'd 891 F.2d 299 (Fed.Cir.1989) (same). Additionally, all applicants for a patent are bound by a duty of “good faith” and “candor” in their dealings with the United States patent office. 37 C.F.R. § 1.56. This duty includes “a duty to disclose to the Office all information known to that individual to be material to patentability.” Id. Failure to comply with this duty amounts to inequitable conduct and renders a patent unenforceable. Inequitable conduct is established by the following three elements: (1) failure to disclose material information; (2) knowledge of the material information; (3) an intent to deceive. See Merck & Co. v. Dan-bury Pharmacal, Inc., 873 F.2d 1418, 1420 (Fed.Cir.1989). In order for information to be “material”, it is not necessary to show that it would have defeated the claims of the patent; it suffices to show “that a reasonable examiner would have considered the withheld prior art important in deciding whether to issue the patent.” Id. at 1421. Moreover, “intent” need not be shown by direct evidence but by “a showing of acts the natural consequence of which are presumably intended by the actor.” Id. at 1422. The Court concludes that Plaintiffs engaged in inequitable conduct by not disclosing prior art relevant to their contemplated best mode which involved the PXC-M121 two position valve. See Consolidated, 910 F.2d at 807-08. Especially in view of the patent’s prosecution history, the two position valve was clearly “material” to the patent examiner. There exists no genuine dispute as to any material issues of fact, and summary judgment is proper. Defendants have established by clear and convincing evidence that Plaintiffs engaged in inequitable conduct by failing to disclose best mode and prior art. Consequently, the ’980 Patent is invalid and unenforceable. Defendants’ Motion for Partial Summary Judgment of Invalidity and Unenforceability of the ’980 Patent (Best Mode and Prior Art) is GRANTED. III. Invalidity of Patent No. 4,442,980 (On Sale) Defendants move for summary judgment on their claim that the ’980 Patent is invalid" }, { "docid": "14005660", "title": "", "text": "prosecution of a patent application has a duty of candor and good faith in dealing with the [Patent] Office, which includes a duty to disclose to the Office all information known to that individual to be material to patenta-bility as defined in this section.” The intentional failure to disclose such material information is deemed inequitable conduct before the Patent Office, and subjects the patent to unenforceability. Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 & n. 6 (Fed.Cir.1995) (citing cases). Inequitable conduct includes “affirmative misrepresentation of a material fact, failure to disclose material information, or submission of false material information, coupled with an intent to deceive.” Id. (citing J.P. Stevens & Co. v. Lex Tex, Ltd., 747 F.2d 1553, 1559 (Fed.Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 73, 88 L.Ed.2d 60 (1985)). In this case, the defendant alleges that the applicants failed to disclose certain prior art in the 023 patent application, namely the Whiteside device. To prevail on its claim of inequitable conduct, Intermedies must offer clear and convincing proof “of the materiality of the prior art, knowledge chargeable to the applicants] of that prior art and of its materiality, and the applicants’] failure to disclose the prior art, coupled with an intent to mislead the PTO.” Molins, 48 F.3d at 1178; accord LaBounty Mfg., Inc. v. United States Int’l Trade Comm’n., 958 F.2d 1066, 1070 (Fed.Cir.1992) (the failure to disclose prior art constitutes inequitable conduct if the defendant shows by clear and convincing evidence that (1) the prior art withheld from the Patent Office was material, and (2) that the patentee and/or its patent counsel manifested a deceptive intent to withhold the material information). Proof of inequitable conduct may be rebutted by a showing of non-materiality, lack of knowledge of materiality or lack of an intent to deceive. The Federal Circuit has described the relevant burdens of proof in the following manner: [0]ne who alleges a ‘failure to disclose’ form of inequitable conduct must offer clear and convincing proof of: (1) prior art or information that is material; (2) knowledge chargeable to applicant of that prior" }, { "docid": "22962970", "title": "", "text": "USPQ2d 1016, 1028 (Fed.Cir.1991). A patent applicant’s duty to disclose material information to the PTO arises under the general duty of candor, good faith, and honesty embodied in 37 C.F.R. § 1.56(a) (1996). Specifically, applicants have a duty to disclose to the PTO information of which they are aware which is material to the examination of the application. 37 C.F.R. § 1.56(a) (1996). This duty is also applicable to reissue proceedings. 37 C.F.R. § 1.175(a)(7) (1996). However, a breach of the disclosure duty alone does not render the patent unenforceable. There must be a showing of inequitable conduct. Inequitable conduct resides in the failure to disclose material information with an intent to deceive or mislead the PTO. J.P. Stevens & Co. v. Lex Tex, Ltd., 747 F.2d 1553, 1559-60, 223 USPQ 1089, 1092 (Fed.Cir.1984). Once thresholds of materiality and intent have been established, the court conducts a balancing test and determines whether the scales tilt to a conclusion that “inequitable conduct” occurred. Halliburton Co. v. Schlumberger Tech. Corp., 925 F.2d 1435, 1440, 17 USPQ2d 1834, 1839 (Fed.Cir.1991). The more material the omission or the misrepresentation, the lower the level of intent required to establish inequitable conduct, and vice versa. Akzo N.V. v. United States Int’l Trade Comm’n, 808 F.2d 1471, 1 USPQ2d 1241 (Fed.Cir.1986). A. Intent Beeton Dickinson argues that the district court ignored the weight of the evidence in holding that Beeton Dickinson failed to establish by clear and convincing evidence that the Lemieux patents were unenforceable due to inequitable conduct. Our review of the record leads us to conclude that Critikon failed to cite the McDonald patent and to disclose the ongoing litigation to the PTO with intent to mislead or deceive. Direct evidence of intent or proof of deliberate scheming is rarely available in instances of inequitable conduct, but intent may be inferred from the surrounding circumstances. J.P. Stevens, 747 F.2d at 1560, 223 USPQ at 1092. For example, intent may be inferred where a patent applicant knew, or should have known, that withheld information would be material to the PTO’s consideration of the patent application. Driscoll" }, { "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": "6008966", "title": "", "text": "Claims 1-6 and 14-15 is denied. B. Inequitable Conduct Patent applicants must prosecute patent applications before the USPTO with candor, good faith, and honesty. See Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995). This “duty of candor” applies to the inventor, the prosecuting agents or attorneys of the inventor, and “[e]very other person who is substantively involved in the preparation or prosecution of the application and who is associated with the inventor, with the assignee or with anyone to whom there is an obligation to assign the application.” 37 C.F.R. § 1.56(c). A breach of the duty of candor may constitute inequitable conduct, which renders an otherwise valid patent unenforceable. See Molins, 48 F.3d at 1178. Buckaroos asserts that Sabasta violated the duty of candor by failing to inform the USPTO of a feature of material prior art, namely the fact that the Aerotech 1618 machine employs on its small OD Attachment, as a standard feature, “mounting portions” that engage “cam rollers” for purposes of aligning a die. Def.’s Inequitable Mot. at 2. Buckaroos contends that if Sabasta had informed the USPTO of the details of the Acrotech machine, it would have contradicted the critical distinction Sabasta relied upon in obtaining the '995 Patent. Id. Accordingly, Buckaroos requests that the Court deem the '995 Patent unenforceable for Sabasta’s inequitable conduct. “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.” Larson Mfg. Co. of S.D., Inc. v. Aluminart Prods. Ltd., 559 F.3d 1317, 1326 (Fed.Cir.2009) (quotation and citation omitted); Life Techs., Inc. v. Clontech Labs., Inc., 224 F.3d 1320, 1324 (Fed.Cir.2000) (“Inequitable conduct can consist of affirmative misrepresentations of material fact, submission of false material information, or the failure to disclose known material information during the prosecution of a patent, coupled with the intent to deceive the PTO.”). “Materiality and intent to deceive are distinct factual inquiries” and the burden is on the moving party to demonstrate each by “clear and convincing evidence.”" }, { "docid": "11593877", "title": "", "text": "The ’876 Patent discloses a new approach to in-transit cooling. It uses a predeep freezing form of cooling because it substantially pre-deep-freezes the most exposed portion of the load during the time the bunker is being charged with CO2 snow through an adequate distribution of vents provided from the bunker area. 22. The Court specifically finds that the ’876 Patent, as improperly copied by GATC, has had considerable commercial success in the marketplace and has served to satisfy a long felt need in the art. All of these factors, along with the failure of other persons of ordinary skill in the art to make the invention, has served to convince this Court that the ’876 Patent is not invalid because its claims would have been “obvious”. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530 (Fed.Cir.1983); Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888 (Fed.Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984). 23. Every applicant for 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" }, { "docid": "22223727", "title": "", "text": "whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefore, infringes the patent. Helena’s lead acetate product is not the “patented invention” and, therefore, is not an infringement as defined by the statute. We do not accept the proposition that an admittedly noninfringing product can be converted by estoppel to an infringing product. 4. Summary of Infringement Analysis Based on properly interpreted claims, Helena’s slides which contain hemoglobin literally infringe the asserted claims of the ’970 patent. The district court’s finding of noninfringement is clearly erroneous, based as it is upon a legally erroneous interpretation of the asserted claims. We reverse that portion of the court’s judgment finding noninfringement by Helena’s hemoglobin-containing slides. With respect to Helena’s slides containing lead acetate as the positive monitor catalyst, however, we agree with the court that SKD failed to carry its burden of proving infringement. Accordingly, we affirm the court’s finding of noninfringement as to the lead acetate product. D. Inequitable Conduct In its cross appeal, Helena contends that the district court erred in failing to hold the ’970 patent unenforceable. The grounds for Helena’s charge of unenforceability are four alleged breaches of the duty to disclose material information, and to disclose that information accurately, to the PTO during prosecution of the ’970 patent. See 37 C.F.R. § 1.56 (1987). Such a breach may constitute inequitable conduct sufficient to render a patent unenforceable. See, e.g., J.P. Stevens & Co. v. Lex Tex, Ltd., 747 F.2d 1553, 1559, 223 USPQ 1089, 1092 (Fed.Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 73, 88 L.Ed.2d 60 (1985); American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1362-63, 220 USPQ 763, 773 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). Having found no infringement, the district court apparently did not consider it necessary to reach the question of enforceability. Because we reverse the finding of noninfringement, the defense of inequitable conduct must be considered. When the pertinent facts are undisputed, as here, an appellate court need not" } ]

[ { "docid": "8470590", "title": "", "text": "PER CURIAM. These matters are before us following the court’s grant of rehearing en banc. Cornelius E. Peoples originally filed two separate complaints for damages pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In those matters, he alleged his constitutional rights were violated during his pretrial detention at a privately run prison under contract with the United States Marshals Service. Both district courts denied relief. See Peoples v. CCA Detention Ctr., 2004 WL 2278667 (D.Kan. Mar.26, 2004)(Peoples II); Peoples v. CCA Detention Ctr., 2004 WL 74317 (D.Kan. Jan.15, 2004:)(Peoples I). They did so, however, on different grounds. In Peoples I the district court dismissed the complaint for lack of subject matter jurisdiction. See Peoples v. CCA Detention Ctr., 2004 WL 74317 at *7. In Peoples II, the court took jurisdiction over the Bivens claims but ultimately dismissed the lawsuit for failure to state a claim upon which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6). Peoples v. CCA Detention Ctr., 2004 WL 2278667 at *7. A panel of this court affirmed the judgments denying relief. In doing so, however, it determined both district courts had the requisite subject matter jurisdiction to consider Mr. Peoples’ claims. Peoples v. CCA Detention Centers, 422 F.3d 1090, 1096 (10th Cir.2005). The panel was divided on the issue whether Mr. Peoples could maintain an action against the individual defendants, all of whom were employees of Corrections Corporation of America. Id. at 1108. We subsequently granted rehearing en banc, and in accordance with our local rule, the judgment was vacated, the mandate stayed, and the cases were restored as pending appeals. 10th Cir. R. 35.6. The court did not vacate the panel opinion. See id. (noting that the “panel decision is not vacated unless the court so orders.”). On this rehearing, we have determined unanimously that the district courts had subject matter jurisdiction over these claims. Accordingly, that portion of the panel decision stands, and the district court judgment in Peoples I is reversed with respect to that issue. See Peoples, 422" } ]

[ { "docid": "10877995", "title": "", "text": "factors counsel] hesitation’ in doing so.” Wilson v. Libby, 535 F.3d 697, 704 (D.C.Cir.2008) (citing Bivens, 403 U.S. at 396, 91 S.Ct.1999; Spagnola v. Mathis, 859 F.2d 223, 226 (D.C.Cir.1988) (en banc)). The existence of a comprehensive remedial scheme can be one such factor. Wilson, 535 F.3d at 705. The “comprehensiveness” of a remedial scheme is not determined by the completeness of the remedy afforded, but rather it “relate[s] to the question of who should decide whether such a remedy should be provided.” Id. (quoting Bush v. Lucas, 462 U.S. 367, 380, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). If it appears that the remedy provided by statute was intended by Congress to be sufficient, a court should stay its Bivens hand. As the D.C. Circuit observed in Wilson v. Libby, since Bivens the Supreme Court has recognized two additional contexts where a Bivens remedy is appropriate: employment discrimination in violation of the Due Process Clause, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and certain Eighth Amendment violations by prison officials, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Wilson, 535 F.3d at 705. However, “in most instances[, the Court has] found a Bivens remedy unjustified.” Wilkie v. Robbins, [551 U.S. 537, 127 S.Ct. 2588, 2597, 168 L.Ed.2d 389 (2007) ]. Indeed, in its “more recent decisions!, the Supreme Court has] responded cautiously to suggestions that Bivens remedies be extended into new contexts.” [Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988).] Id. at 705. The Circuit went on to note that even in the absence of a comprehensive scheme, courts can still decline to create new Bivens remedies: In Wilkie, there was no comprehensive scheme demonstrating “that Congress expected the Judiciary to stay its Bivens hand,” but the Court declined to imply a Bivens remedy nonetheless. [Wilkie, 127 S.Ct.] at 2600. The Court held that a remedy for allegedly harassing conduct of government officials would “come better, if at all, through legislation [because] ‘Congress is in a far better position than" }, { "docid": "11827562", "title": "", "text": "v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). The Bivens Court permitted “a victim of a Fourth Amendment violation by federal officers [to] bring suit for money damages against the officers in federal court.” Id. I have no quarrel with much of what I take to be the majority’s view of Bivens jurisprudence. The Supreme Court has indeed been most reluctant to “extend” use of the “Bivens model.” Wilkie v. Robbins, — U.S. -, 127 S.Ct. 2588, 2597, 168 L.Ed.2d 389 (2007). Since Bivens, the Court has “extended” its reach only twice — to “recognize[ ] an implied damages remedy under the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the Cruel and Unusual Punishments Clause of the Eighth Amendment, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).” Malesko, 534 U.S. at 67, 122 S.Ct. 515; see also Wilkie, 127 S.Ct. at 2597-98. The majority is also correct in observing that when determining whether to extend Bivens, i.e., whether “to devise a new Bivens damages action,” Wilkie, 127 S.Ct. at 2597, a court must first determine whether Congress has provided “any alternative, existing process for protecting the interest” in question, id. at 2598. If no alternative remedial scheme exists, whether to provide “a Bivens remedy is a matter of judicial judgment.” Id. “ ‘[T]he federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation.’ ” Id. (quoting Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). -But not every attempt to employ Bivens to redress asserted constitutional violations requires a separate and independent judicial inquiry as to whether the remedy is appropriate in that particular case. Only when the court is being asked “to devise a new Bivens damages action,” id. at 2597 (emphasis added), do we make such an assessment. And a “new Bivens damages action” is" }, { "docid": "10805347", "title": "", "text": "believed Davis had violated. On November 20, 2009, Mulhol-lan notified Davis that he would be removed from his probationary appointment as Assistant Director. Mulhollan provided Davis with a thirty-day appointment as Mulhollan’s special advisor to provide time to look for other employment, after which time Davis was separated from CRS. Davis then filed the current action against appellant, as well as James Billing-ton, the Librarian of Congress, seeking declaratory and injunctive relief, and seeking damages against Mulhollan for violation of his constitutional rights under the First and Fifth Amendments, asking the court to imply a remedy under Bivens. Mulhollan moved to dismiss, both on the basis of qualified immunity and on the theory that the court should not imply a Bivens remedy for the discharge of a civil-service employee. Because we agree that there is no available Bivens remedy, we will not reach the question of qualified immunity but will reverse the district court’s denial of the motion to dismiss. II. Analysis We have jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine. It is a well-established application of that doctrine that “a district court’s denial of a claim of qualified 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.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Because the defense of qualified immunity from a Bivens damages action “directly implicate^]” the antecedent question whether to recognize that Bivens action at all, our jurisdiction extends to that question as well. See Wilkie v. Robbins, 551 U.S. 537, 549 & n. 4, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (internal quotation marks omitted). We review the district court’s legal conclusions de novo. Wilson v. Libby, 535 F.3d 697, 704 (D.C.Cir.2008). A. In Bivens, the Supreme Court determined that under appropriate circumstances the federal courts possess the dis cretion to create remedial actions against federal officials for violations of constitutional rights, even though Congress has not expressly authorized those specific remedies" }, { "docid": "17098495", "title": "", "text": "a conclusion that the plaintiff does not have a legally sound claim for relief. Wilkie v. Robbins, 551 U.S. 537, 548-50, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), applies this approach to Bivens claims in particular. Robbins sued some federal officials, asserting extra-statutory claims for damages and contending that reasoning along the lines of Bivens allowed the federal judiciary to recognize such a remedy. Defendants took an interlocutory appeal, contending that they enjoyed qualified immunity. The Supreme Court ruled in defendants’ favor — not because of immunity, but because it concluded that it should not create a new Bivens remedy. Similarly, in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court resolved a qualified-immunity appeal by deciding that the complaint did not state a plausible claim on the facts. We have jurisdiction to decide this case on the same grounds the Supreme Court employed in Wilkie and Iqbal. See also Levin v. Madigan, 692 F.3d 607, 610-11 (7th Cir.2012). The appeal by the United States does not present any jurisdictional problem, given the court’s decision to accept the appeal certified under § 1292(b). Neither does it present a difficult question. The panel held that § 701(b)(1)(G) prevents any relief against the United States. 653 F.3d at 626-27. We agree with that conclusion, for the reasons the panel gave. Further discussion of the subject is unnecessary. Ill When considering whether to create an extra-statutory right of action for damages against military personnel who mistreat detainees, we assume that at least some of the conditions to which plaintiffs were subjected violated their rights. Although the Constitution’s application to interrogation outside the United States is not settled, see United States v. Verdugo-Urquidez, 494 U.S. 259, 268-69, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), Rumsfeld concedes (for current purposes at least) that it governs. The conduct alleged in the complaint appears to violate the Detainee Treatment Act, 10 U.S.C. § 801 note and 42 U.S.C. §§ 2000dd to 2000dd-l, and may violate one or more treaties. The source of the substantive right does not matter for the" }, { "docid": "23686229", "title": "", "text": "a legislative judgment is lacking, Bivens permits the courts to use their common-law powers to fill crucial gaps and provide redress in appropriate instances. This line of cases thus instructs the courts to tread lightly where Congress has spoken, presuming that in those instances constitutional interests have been adequately addressed by the legislative branch. See Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (“When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.”). On the other hand, where no legislative remedy exists, Bivens reaffirms the courts’ power to ensure that individuals can obtain relief for constitutional injuries. The courts, within this framework, provide a forum of last resort; through Bivens, they stand behind constitutional guarantees neglected by the political branches. Compare Bivens, 403 U.S. at 410, 91 S.Ct. 1999 (Harlan, J., concurring) (implying a remedy where constitutional injury would otherwise go unredressed), with Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (denying Bivens remedy in light of the “elaborate remedial system” established by Congress). Even so, this remedy is constrained by “special factors” that counsel hesitation even in the “absence of affirmative action by Congress.” Bivens, 403 U.S. at 396, 91 S.Ct. 1999. The Supreme Court has never provided an exhaustive definition of these special factors, and existing precedent offers only a few data-points. But it has nonetheless indicated that this analysis should “weight] reasons for and against the creation of a new cause of action, the way common law judges have always done.” Wilkie v. Robbins, 551 U.S. 537, 554, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). In Wilkie, for example, the factor that ultimately counseled hesitation was the difficulty of distinguishing unconstitutional conduct from lawful government activity. Id. at 555-61, 127 S.Ct. 2588. In earlier cases, involving claims by military personnel, the Supreme Court cited Congress’ plenary authority “To make Rules for the Government and Regulation of the land" }, { "docid": "22365619", "title": "", "text": "to consider Smith’s Eighth Amendment claims. . Defendants argue that we are creating a new Bivens remedy for deliberate indifference under the Eighth Amendment, citing Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). We disagree. In Wilkie, the Supreme Court discussed the two-step process for determining whether to recognize a Bivens remedy (citing Bush ), and ultimately declined to permit the Bivens remedy for a Fifth Amendment retaliation claim against land ownership interests that had been brought against Bureau of Land Management officials. 127 S.Ct. at 2598-2604. The Court noted in Wilkie, however, that it had previously recognized a Bivens claim for \"an Eighth Amendment violation by prison officials” in Carlson. Id. at 2597. . The Inmate Accident Compensation Act was amended in 1988, Pub.L. No. 100-690, 102 Stat. 4412, and 2004, Pub.L. No. 108-271, 118 Stat. 814, post -Bivens and post-Carlson, without any Congressional comment on the relationship between that Act and Bivens claims. . Additionally, but without in-depth analysis, the Ninth Circuit adopted the conclusion of the Seventh Circuit in Bagóla. Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir.1996). The Ninth Circuit noted that \"the theories as well as the defendants in [Inmate Accident Compensation Act] claims and in Bivens actions are different” and concluded that the Inmate Accident Compensation Act does not preclude a Bivens action against prison officials. Id. . As noted above, a Bivens claim can be maintained only against federal officials in their individual capacities. Those defendants meeting this standard are: the Attorney General of the United States, H. Lappin (the director of the Federal Bureau of Prisons), Eddie Gallegos (the former warden at Leavenworth), William Howell, Jr. (the safety department manager at Leavenworth), John Parent (the Custodial Maintenance Services manager at Leavenworth), Teresa Hart-field (the education administrator at Leavenworth), Jeffery Sinclair (the electrical shop supervisor at Leavenworth), John Doe (a member of the education staff at Leavenworth), Janet Durbin (a former member of the education staff at Leavenworth), and Stephanie Wheeler (a safety department member at Leavenworth)." }, { "docid": "8297959", "title": "", "text": "The court GRANTS that request. El Badrawi has 21 days after entry of this Ruling to file an Amended Complaint. III. CLAIMS AGAINST MANACK AND LOSER Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), El Badrawi brings several related claims for damages against defendants Manack and Loser. First, El Badrawi contends that when Manack and Loser initially arrested and detained him without probable cause, they violated his Fourth Amendment right to be free from unreasonable seizure and his Fifth Amendment Right to due process. Second, El Badrawi contends that his prolonged detention after he agreed to voluntary departure, unjustified by any proper immigration purpose, violated his Fourth and Fifth Amendment rights. Manack and Loser argue that a Bivens remedy is not available in this context. The court agrees. As the Supreme Court has recently explained, a litigant is not automatically entitled to bring a Bivens claim against a federal officer “no matter what other means there may be to vindicate a protected interest.” Wilkie v. Robbins, — U.S. --, —, 127 S.Ct. 2588, 2597, 168 L.Ed.2d 389 (2007); see also Benzman v. Whitman, 523 F.3d 119, 125 (2d Cir.2008) (“A Bivens action is a blunt and powerful instrument for correcting constitutional violations and not an ‘automatic entitlement’ associated with every governmental infraction.”). Instead, “any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee.” Wilkie, 127 S.Ct. at 2597. Accordingly, under current Supreme Court jurisprudence, to determine whether a Bivens remedy is available in any given context, the court must engage in a two-step inquiry. First, the court must ask if there are alternative processes in existence that can protect the plaintiffs constitutional rights, and which provide a “convincing reason” for the judicial branch to stay its hand. Id. at 2598. Second, even if no alternative remedies are available, a federal court must determine if there are “special factors” which should nevertheless preclude the recognition of a cause of action. Bush v. Lucas, 462" }, { "docid": "11193069", "title": "", "text": "for the Court to pass judgment on the constitutionality of § 2241(e). See Karriem v. Barry, 743 F.2d 30, 38-39 (D.C.Cir.1984) (“[I]t is the general policy of the federal courts to avoid addressing broad constitutional issues unless their resolution is imperative in the context of the case at hand.”). Moreover, it “conforms to com mon sense” to avoid the expenditure of considerable time and legal resources to brief and argue, on the part of the parties, and to analyze, on the part of the Court, the jurisdictional issues raised by plaintiffs for claims that are clearly barred for other reasons. Chalabi, 543 F.3d at 729 (affirming district court’s dismissal on grounds with “merits characteristics” despite unresolved statutory jurisdictional questions where claims at issue were “plainly barred”). Therefore, the Court need not resolve the constitutionality of § 2241(e), but rather, it will proceed to the issue of whether a Bivens cause of action should be implied on behalf of the plaintiffs. B. Bivens Remedy In Bivens, the Supreme Court held that under certain circumstances a plaintiff may be entitled to recover money damages for injuries suffered as a result of a government actor’s violation of the Constitution. See Bivens, 403 U.S. at 397, 91 S.Ct. 1999. In determining whether to recognize a remedy under Bivens, courts engage in a two-step process. Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). The first step looks to “whether any alternative, existing process for protecting the interest [at issue] amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. Where no such “alternative” process protects the interest at issue, courts must then “weigh[ ] reasons for and against the creation of a new cause of action” and decide whether the benefits of implying a new remedy offset the disadvantages associated with doing so. Id. at 554, 127 S.Ct. 2588. In making such a determination, courts must “pay[ ] particular heed ... to any special factors counseling hesitation before authorizing a new kind of federal litigation.” Bush v. Lucas," }, { "docid": "5879962", "title": "", "text": "personal capacities. Because the First Amended Complaint is ambiguous in this regard, the court will construe plaintiffs claims as applying to defendants Ryan and Ashcroft in their individual capacities, and address the merits of the motion to dismiss. C. Whether Plaintiffs Claims are Cognizable in a Bivens Action. Defendants argue that plaintiffs First and Fifth Amendment claims are not cognizable in a Bivens action. While Section 1983 of Title 42 of the United States Code creates a cause of action against state officials for their constitutional torts, there is no such statutory cause of action against federal officials. See Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized an implied cause of action for damages against federal officers for violations of Fourth Amendment rights. Id. Since implied causes of action are disfavored, the Supreme Court “has been reluctant” to expand Bivens to new contexts, id., doing so only for violations arising under the Due Process Clause of the Fifth Amendment and the Eighth Amendment. Wilkie v. Robbins, 551 U.S. 537, 549, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). The Supreme Court has expressly recognized Bivens claims arising under the equal protection component of the Due Process Clause of the Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). The case law is unsettled as to whether Bivens applies to retaliation claims under the First Amendment. In Hudson Valley Black Press, the Second Circuit considered whether to allow a First Amendment cause of action against Internal Revenue Service officials who audited a newspaper publisher in retaliation for printing an article highly critical of the IRS. Hudson Valley Black Press v. I.R.S., 409 F.3d 106, 107 (2d Cir.2005). The Court declined to do so, reasoning that: (1) Congress had already enacted a comprehensive statutory scheme to challenge improper tax audits, including creating a civil cause of action for damages under the “Taxpayer Bill of Rights;” and (2) Congress had considered, but" }, { "docid": "20450579", "title": "", "text": "did not apply and Levin had established a genuine issue of material fact such that his § 1983 age discrimination claim could proceed to trial. Levin II, 2011 WL 2708341, at *20. The Individual Defendants filed this timely appeal, asking this court to find that they are entitled to qualified immunity because the ADEA is the exclusive remedy for Levin’s age discrimination claims. II. Analysis A. Appellate Jurisdiction Levin does not dispute that we have jurisdiction over an order denying qualified immunity under the collateral or der doctrine. See Surita v. Hyde, 665 F.3d 860, 868 (7th Cir.2011). But Levin believes, this court lacks jurisdiction over the issue of whether the ADEA precludes a § 1983 equal protection claim. Levin asserts that this issue, resolved in Judge Coar’s opinion, is not inextricably intertwined with Judge Chang’s denial of qualified immunity. See Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 976-77 (7th Cir.2010) (doctrine of pendent jurisdiction allows appellate court to review an interlocutory order that is inextricably intertwined with an appealable order). We disagree with Levin’s analysis. Instead, we believe this case is analogous to Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). In Wilkie, on an interlocutory appeal of the denial of qualified immunity, the Supreme Court considered whether a new, freestanding damages remedy should exist under Bivens. Id. at 548-50, 127 S.Ct. 2588 (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). The Supreme Court held that it had jurisdiction to consider whether such a remedy existed because the recognition of an entire cause of action is “directly implicated by the defense of qualified immunity.” Id. at 549 n. 4 (quoting Hartman v. Moore, 547 U.S. 250, 257 n. 5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). Similar to Wilkie, the very existence of a freestanding damages remedy under § 1983 is directly implicated by a qualified immunity defense such that we have jurisdiction over this appeal. Thus, we first consider whether the ADEA precludes a § 1983" }, { "docid": "15601195", "title": "", "text": "Bivens claims receives the same consideration in the context of the proposed TAC.”). The Supreme Court disfavors implied causes of action like Bivens and therefore limits their availability. Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. A Bivens remedy “has to represent a judgment about the best way to implement a constitutional guarantee.” Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). Damages are not “an automatic entitlement no matter what other means there may be to vindicate a protected interest.” Id. In the 44 years since Bivens, the Court “ha[s] recognized two more non-statutory damages remedies, the first for employment discrimination in violation of the Due Process Clause, ... and the second for an Eighth Amendment violation by prison officials[.]” Id. at 549-50, 127 S.Ct. 2588 (2007) (internal citations omitted); see Davis v. Passman, 442 U.S. 228, 245-48, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (implying a damages action under the Fifth Amendment Due Process Clause to hold that a former congressional employee could seek damages against her employer for a claim of gender discrimination); Carlson v. Green, 446 U.S. 14, 17-18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (implying another Bivens in allowing a prisoner’s estate to pursue damages against federal prison officials for violations of the prisoner’s Eighth Amendment rights). Carlson marks the last time the Supreme Court extended Bivens. See Minneci v. Pollard, — U.S. -, 132 S.Ct. 617, 622, 181 L.Ed.2d 606 (2012) (“Since Carlson, the Court has had to decide in several different instances whether to imply a Bivens action. And in each instance it has decided against the existence of such an action.”). Rather, “[t]he [Supreme] Court has ... ‘recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.” Mirmehdi v. United States, 689 F.3d 975, 981 (9th Cir.2012) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 695, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)). As a result, the Supreme Court “ha[s] consistently refused to extend Bivens liability to any new context" }, { "docid": "15601194", "title": "", "text": "individual federal officers from committing constitutional violations.”). A“ Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). “This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir.2007). a. Availability of Bivens Remedy Chang and Garcia make three arguments against Plaintiffs Bivens claims: (1) the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., precludes a Bivens remedy; (2) Congress’ and the Executive Branch’s plenary powers over immigration matters warrants dismissal of Plaintiffs Bivens claims; and (3) Plaintiffs status as a fugitive should preclude him from seeking a remedy in this Court. Agents MTD at 16-26; Opp’n to TAC Mot. at 7 (“[T]he special factors’ defense against Bivens claims receives the same consideration in the context of the proposed TAC.”). The Supreme Court disfavors implied causes of action like Bivens and therefore limits their availability. Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. A Bivens remedy “has to represent a judgment about the best way to implement a constitutional guarantee.” Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). Damages are not “an automatic entitlement no matter what other means there may be to vindicate a protected interest.” Id. In the 44 years since Bivens, the Court “ha[s] recognized two more non-statutory damages remedies, the first for employment discrimination in violation of the Due Process Clause, ... and the second for an Eighth Amendment violation by prison officials[.]” Id. at 549-50, 127 S.Ct. 2588 (2007) (internal citations omitted); see Davis v. Passman, 442 U.S. 228, 245-48, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (implying a damages action under the Fifth Amendment Due Process Clause to hold that a former congressional employee could seek damages against her employer" }, { "docid": "10805348", "title": "", "text": "It is a well-established application of that doctrine that “a district court’s denial of a claim of qualified 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.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Because the defense of qualified immunity from a Bivens damages action “directly implicate^]” the antecedent question whether to recognize that Bivens action at all, our jurisdiction extends to that question as well. See Wilkie v. Robbins, 551 U.S. 537, 549 & n. 4, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (internal quotation marks omitted). We review the district court’s legal conclusions de novo. Wilson v. Libby, 535 F.3d 697, 704 (D.C.Cir.2008). A. In Bivens, the Supreme Court determined that under appropriate circumstances the federal courts possess the dis cretion to create remedial actions against federal officials for violations of constitutional rights, even though Congress has not expressly authorized those specific remedies by statute. See Bush v. Lucas, 462 U.S. 367, 373-74, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Beginning with Bivens, the Supreme Court has drawn upon this power in three instances to create a nonstatutory action for money damages against federal officials for constitutional violations. See Bivens, 403 U.S. 388, 91 S.Ct. 1999 (Fourth Amendment violation by federal agents); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (employment discrimination in violation of the Due Process Clause); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (Eighth Amendment violations by prison officials). For the most part, though, the Court has “responded cautiously” to requests for new “Bivens ” remedies. Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). The decision whether to recognize a new damages remedy is not about ensuring that every violation of a constitutional right is vindicated. Rather, the Bivens inquiry is a “judgment about the best way to implement a constitutional guarantee.” Robbins, 551 U.S. at 550, 127" }, { "docid": "18962001", "title": "", "text": "a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies. 487 U.S. at 423, 108 S.Ct. 2460. More recently, in Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), the Supreme Court again considered whether the existence of alternative means for protecting a constitutionally-based interest precluded a Bivens remedy. The Wilkie Court ultimately concluded that the “patchwork” of “state and federal, administrative and judicial benches applying regulations, statutes and common law rules” available to the plaintiff was unlike the “ ‘elaborate remedial system[s]’ ” that were designed to protect the interests of plaintiffs in Bush and Chilicky, and could not definitively support an inference that “Congress expected the Judiciary to stay its Bivens hand.” Id. at 554, 127 S.Ct. 2588 (quoting Bush, 462 U.S. at 388, 103 S.Ct. 2404). The Court therefore proceeded to the second step of the special-factors analysis — a step that was unnecessary in Bush and Chilicky — and “weighing the reasons for and against the creation of a new cause of action, the way that common law judges have always done,” it found that other special factors counseled against recognizing a Bivens remedy for plaintiff’s alleged injury. Id. (citing Bush, 462 U.S. at 378, 103 S.Ct. 2404 (“In the absence of such a [statutory remedy], the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal.”)). Consistent with Bush, Chilicky and Wilkie, the D.C. Circuit has articulated several “general principles” governing when the existence of a statutory remedial scheme counsels hesitation in creating a Bivens remedy. Spagnola v. Mathis, 859 F.2d 223, 228 (D.C.Cir.1988) (en banc) (per curiam). “If the comprehensiveness of a statutory scheme cannot be gainsaid and it appears that ‘congressional inaction [in providing for damages remedies] has not been inadvertent[,]’ courts should defer to Congress’ judgment with regard to the creation of supplemental Bivens remedies.” Id. at 227-28 (alterations in original) (quoting Chilicky, 487 U.S. at 423, 108 5." }, { "docid": "20450580", "title": "", "text": "disagree with Levin’s analysis. Instead, we believe this case is analogous to Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). In Wilkie, on an interlocutory appeal of the denial of qualified immunity, the Supreme Court considered whether a new, freestanding damages remedy should exist under Bivens. Id. at 548-50, 127 S.Ct. 2588 (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). The Supreme Court held that it had jurisdiction to consider whether such a remedy existed because the recognition of an entire cause of action is “directly implicated by the defense of qualified immunity.” Id. at 549 n. 4 (quoting Hartman v. Moore, 547 U.S. 250, 257 n. 5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). Similar to Wilkie, the very existence of a freestanding damages remedy under § 1983 is directly implicated by a qualified immunity defense such that we have jurisdiction over this appeal. Thus, we first consider whether the ADEA precludes a § 1983 equal protection claim before we turn to the issue of qualified immunity. B. General Preclusion of § 1983 Claims Section 1 of the Civil Rights Act of 1871, codified as 42 U.S.C. § 1983, “authorizes suits to enforce individual rights under federal statutes as well as the Constitution” against state and local government officials. City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Section 1983 does not create substantive rights, but operates as “a means for vindicating federal rights conferred elsewhere.” Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir.2011) (quoting Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.1997)). In evaluating the limits of relief available under § 1983 for statutory claims, the Supreme Court has held that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d" }, { "docid": "17098559", "title": "", "text": "section 1983 rather than Bivens, but for present purposes the key point is that the use of military force against civilians was subject to only qualified immunity, not the absolute immunity that the majority in this case grants to military personnel. C. Legislation and “Special Factors ” In addition to reading Chappell and Stanley too broadly, the heart of the majority opinion converts the second step of Bivens analysis — looking at “special factors” that might counsel hesitation before authorizing the claim — into a search for evidence that Congress has expressly authorized Bivens actions against U.S. military personnel. This method of analysis fails to follow the Supreme Court’s instructions for considering new questions about the scope of the Bivens remedy. The first step is to consider “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). The short answer is no. The defendants do not suggest that there is any alternative remedial scheme at all comparable to a potential Bivens remedy in the way that Social Security procedures and remedies in Schweiker or the federal civil service procedures and remedies in Bush provided substitute remedies that foreclosed Bivens remedies. See Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Because there is no sufficient alternative, we should proceed to the second step of the Bivens test as described in Bush v. Lucas: “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.” 462 U.S. at 378, 103 S.Ct. 2404, quoted in Wilkie, 551 U.S. at 550, 127 S.Ct. 2588. The focus before the panel was on torture claims arising from military custody in the controlled, non-combat environment of military prisons in an overseas war" }, { "docid": "11193070", "title": "", "text": "may be entitled to recover money damages for injuries suffered as a result of a government actor’s violation of the Constitution. See Bivens, 403 U.S. at 397, 91 S.Ct. 1999. In determining whether to recognize a remedy under Bivens, courts engage in a two-step process. Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). The first step looks to “whether any alternative, existing process for protecting the interest [at issue] amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. Where no such “alternative” process protects the interest at issue, courts must then “weigh[ ] reasons for and against the creation of a new cause of action” and decide whether the benefits of implying a new remedy offset the disadvantages associated with doing so. Id. at 554, 127 S.Ct. 2588. In making such a determination, courts must “pay[ ] particular heed ... to any special factors counseling hesitation before authorizing a new kind of federal litigation.” Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Since Bivens was announced, the Supreme Court has identified multiple “special factors” to discourage courts from implying a remedy under Bivens and “in most instances [has] found a Bivens remedy unjustified.” Wilkie, 551 U.S. at 549-50, 127 S.Ct. 2588 (noting since Bivens, Court has recognized only two additional nonstatutory damages remedies); see also Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (“Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability ‘to any new context or new category of defendants.’ ”) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)); Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir.2009) (declining to extend Bivens cause of action “in the context of extraordinary rendition, [because] such an action would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation, and that fact counsels hesitation”). Despite judicial reluctance to imply Bivens remedies," }, { "docid": "22365617", "title": "", "text": "for an abuse of discretion. Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir.2005). A district court has substantial discretion to grant Rule 60(b) relief as justice requires, and \"such relief is extraordinary and may only be granted in exceptional circumstances.” Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.2000) (internal quotations omitted). However, a \"district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir.2005) (internal quotation omitted). \"And a Rule 59(e) motion is normally granted only to correct manifest errors of law or to present newly discovered evidence.” Jennings, 394 F.3d at 854 (internal quotation omitted). Because the ultimate determinations on the merits of Smith’s claims are based on legal grounds and the correct application of the applicable legal standards, the standard of review is met regardless which appellate standard is used. . Smith filed a \"Request to Call for Affidavit” requesting the court to consider certain documents on appeal. Prior to consolidation of Smith's appeals, the government filed a response in opposition, arguing that we lacked jurisdiction over some of the matters in the appeal of the district court’s memorandum and order. Because we have consolidated Smith’s appeals, and have determined that we should consider the arguments made in support of both, we grant Smith’s motion. . Defendants contended that whether a Bivens remedy was available to Smith was a matter of subject matter jurisdiction, and the district court apparently agreed. As we have previously stated, however, whether a court should imply a Bivens remedy is not a question of subject matter jurisdiction. Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1096 (10th Cir.2005), vacated in part on other grounds on reh'g en banc, 449 F.3d 1097 (10th Cir.2006). \"In fact, there is no power to imply a Bivens cause of action unless a court has first satisfied itself that jurisdiction exists.” Id. Thus, the district court had jurisdiction pursuant to 28 U.S.C. § 1331" }, { "docid": "19980433", "title": "", "text": "273, 274 (D.C.Cir.2003), aff'g in relevant part No. 00-1912, 2001 WL 34360430 (D.D.C. Sept. 20, 2001), and because the Supreme Court has held that the existence of a comprehensive remedial scheme precludes implication of Bivens remedies even where the scheme does not provide full relief, Wilkie v. Robbins, — U.S. -, 127 S.Ct. 2588, 2600-01, 2604-05, 168 L.Ed.2d 389 (2007); Schweiker v. Chilicky, 487 U.S. 412, 421-22, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the district court concluded that it could not imply a Bivens remedy here. The court further concluded that creating a Bivens remedy in this case would be inappropriate because, if litigated, the case would inevitably require the disclosure of sensitive intelligence information. The district court held that the invasion of privacy claim also required dismissal. The United States had intervened in the lawsuit with respect to the tort claim and had filed a certification pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), that, “at the time of the conduct alleged in the amended complaint the individual federal defendants ... were each acting within the scope of their employment as employees of the United States.” The court found that the Westfall Act certification was proper, meaning that the case must proceed solely against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80. Because the Wilsons had not exhausted administrative remedies as required by the FTCA, the court dismissed the claim for lack of jurisdiction. The Wilsons appealed. II. Jurisdiction The “first and fundamental question” that we are “bound to ask and answer” is whether we have jurisdiction to decide this appeal. Bancoult v. McNamara, 445 F.3d 427, 432 (D.C.Cir.2006) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)) (internal quotation marks omitted). “ ‘The requirement that jurisdiction be established as a threshold matter “springs from the nature and limits of the judicial power of the United States” and is “inflexible and without exception.” ’ ” Id." }, { "docid": "22365618", "title": "", "text": "requesting the court to consider certain documents on appeal. Prior to consolidation of Smith's appeals, the government filed a response in opposition, arguing that we lacked jurisdiction over some of the matters in the appeal of the district court’s memorandum and order. Because we have consolidated Smith’s appeals, and have determined that we should consider the arguments made in support of both, we grant Smith’s motion. . Defendants contended that whether a Bivens remedy was available to Smith was a matter of subject matter jurisdiction, and the district court apparently agreed. As we have previously stated, however, whether a court should imply a Bivens remedy is not a question of subject matter jurisdiction. Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1096 (10th Cir.2005), vacated in part on other grounds on reh'g en banc, 449 F.3d 1097 (10th Cir.2006). \"In fact, there is no power to imply a Bivens cause of action unless a court has first satisfied itself that jurisdiction exists.” Id. Thus, the district court had jurisdiction pursuant to 28 U.S.C. § 1331 to consider Smith’s Eighth Amendment claims. . Defendants argue that we are creating a new Bivens remedy for deliberate indifference under the Eighth Amendment, citing Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). We disagree. In Wilkie, the Supreme Court discussed the two-step process for determining whether to recognize a Bivens remedy (citing Bush ), and ultimately declined to permit the Bivens remedy for a Fifth Amendment retaliation claim against land ownership interests that had been brought against Bureau of Land Management officials. 127 S.Ct. at 2598-2604. The Court noted in Wilkie, however, that it had previously recognized a Bivens claim for \"an Eighth Amendment violation by prison officials” in Carlson. Id. at 2597. . The Inmate Accident Compensation Act was amended in 1988, Pub.L. No. 100-690, 102 Stat. 4412, and 2004, Pub.L. No. 108-271, 118 Stat. 814, post -Bivens and post-Carlson, without any Congressional comment on the relationship between that Act and Bivens claims. . Additionally, but without in-depth analysis, the Ninth Circuit adopted the conclusion of the Seventh" } ]

[ { "docid": "22619104", "title": "", "text": "his apartment, but denied having had intercourse with her. He claimed that his sexual activity with other women accounted for the stains on his sheet, and that a hair from the girl’s head was on his sheet because she had seated herself on his bed. Defense counsel also implied that the girl’s underwear and vaginal secretions tested positive for semen and sperm because she probably had recently engaged in relations with the father of her baby. Counsel did not, however, call the girl’s boyfriend to testify or have him tested for blood type, an omission upon which the prosecution commented in closing argument. The trial judge, in rendering his verdict, noted: “As in most cases nothing is cut and dry. There are discrepancies in the State’s case, there are discrepancies in the defense as it’s presented.” 6 Tr. 86. After pointing out some of the more troublesome inconsistencies in the testimony of several of the witnesses, the judge declared his conclusion that the State had proved its case beyond a reasonable doubt. After trial, respondent dismissed his attorney and retained new counsel for his appeal. On appeal, respondent alleged ineffective assistance of counsel and error in the trial court’s refusal to entertain the suppression motion during trial. The appeals court announced summarily that it found no merit in either claim and affirmed respondent’s conviction. The Supreme Court of New Jersey subsequently denied respondent’s petition for discretionary review. Respondent then sought postconviction relief in the New Jersey Superior Court, from the same judge who had tried his case. There Morrison presented the identical issues he had raised on direct appeal. The court denied relief on the ground that it was bound by the appellate court’s resolution of those issues against respondent. Respondent then sought a writ of habeas corpus in Federal District Court, again raising claims of ineffective assistance of counsel and erroneous admission of illegally seized evidence. The District Court ruled that because respondent did not allege that the State had denied him an opportunity to litigate his Fourth Amendment claim fully and fairly, direct consideration of this claim on" } ]

[ { "docid": "9677382", "title": "", "text": "support his ineffective assistance of trial counsel claim. Because a number of attorneys represented Williams at various stages of the trial, and because his claim of ineffective assistance of trial counsel is procedurally complex, a chronological description of the various proceedings is presented herein. Williams first raised his claim of ineffective assistance of trial counsel through his newly appointed appellate attorney, Richard Allen, in his motion for new trial as required by Georgia law. See Thompson v. State, 257 Ga. 386, 388, 359 S.E.2d 664, 665 (1987). Allen argued that, in the penalty phase, Collins failed to recognize and investigate Williams’s mental illness, failed to hire a psychiatric expert to determine whether Williams was mentally ill, failed to investigate Williams’s juvenile records, and failed to find, confer with, or present witnesses for mitigation purposes. Allen stated that four additional witnesses should have been called to testify at the sentencing hearing, but he did not tell the court what their testimony would have been. The trial court denied the motion for a new trial, finding in pertinent part that (1) the most that the additional four mitigation witnesses could have testified to was the defendant’s good character, and therefore, their testimony would have been cumulative of the mitigation evidence presented; and (2) Williams refused to give Collins information that would have been helpful for mitigation purposes. Based upon these factual findings, the court ruled that Collins rendered effective assistance of counsel at the penalty phase. The trial court also stated that to the extent that Collins’s actions were deficient at the penalty phase, based on the aggravating and mitigating evidence presented, there was no reasonable probability that the sentencing jury would have concluded that death was not the appropriate penalty. On direct appeal, the Supreme Court of Georgia affirmed the trial court’s ruling on the ineffective assistance claim. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988). Williams filed a state habeas petition in Butts County, Georgia, and again raised a claim of ineffective assistance of trial counsel based on the same errors previously alleged in his motion for new" }, { "docid": "22206241", "title": "", "text": "of justice would occur. Having found that the prosecutor’s comments, when viewed against the weight of the evidence, did not constitute grave error, the District Court ruled that counsel’s alleged ineffectiveness for failing to object and preserve the due process claims for appeal was not reviewable by the federal habeas court. After reviewing Werts’ briefs in support of his direct appeal to the Pennsylvania Supreme Court, and his amended PCHA petition and briefs to the superior and supreme courts on collateral review, as well as the opinions of the trial court denying post-trial motions and post-collateral relief, of the Pennsylvania Supreme Court on direct review, and of the superior court on collateral review, we find that the ineffectiveness claims based on counsel’s failure to object to the improper comments of the prosecutor or to preserve these claims for appeal are not procedurally defaulted with the exception of the prosecutor’s remark in his dosing argument that Moore would be a “marked man” if he would return to prison. In the state collateral proceeding, the superior court refused to review the ineffectiveness claim for failing to object to the “marked man” comment because Werts’ due process challenge based on the “marked man” comment had been finally litigated on direct review by the Pennsylvania Supreme Court. The highest state court in Pennsylvania has never ruled on the merits of Werts’ ineffectiveness claim based on the “marked man” comment during closing argument and would not do so now for procedural reasons. Thus, the ineffective assistance of counsel claim based on the “marked man” comment during dosing argument has been procedurally defaulted. PCHA counsel raised the ineffectiveness claim for trial counsel’s failure to object to the remaining improper remarks of the prosecutor at the earliest opportunity in his amended PCHA petition. These claims were considered on the merits and rejected by the PCHA trial court, as well as the superior court on collateral review. Accordingly, the ineffectiveness claims based on the improper remarks of the prosecutor other than the “marked man” comment are reviewable in this federal habeas proceeding. We turn now to the merits" }, { "docid": "2724008", "title": "", "text": "or to be made part of the record. Miss Foulkes was called by the defense and testified fully and completely using, in a very limited way, the notes that are the subject of this inquiry to refresh her recollection. Under the circumstances, ... no further discovery is warranted. In a written order dated January 13, 1999, the PCRA court denied Williams’ Batson challenge, concluding that he had failed to make out a prima facie case at step one of Batson’s three-step analytical framework. Williams appealed, and the Pennsylvania Supreme Court ruled that the Batson claim was waived because it was not presented on direct appeal. It then turned to the derivative ineffective assistance of counsel claims. To assess these claims, the court looked to the underlying Batson challenge. Under Pennsylvania law, as set forth in Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74 (2004), the failure to raise a Batson objection during voir dire deprives a petitioner of Batson’s three-step burden-shifting procedure. A petitioner so deprived must instead shoulder the burden to prove actual, purposeful discrimination by a preponderance of the evidence. The Pennsylvania Supreme Court found that Williams’ “trial counsel did not raise a Batson objection during voir dire,” and thus the Uderra rule applied. Williams II, 863 A.2d at 514. It then determined that Williams had not marshaled evidence sufficient to prove actual, purposeful discrimination. Id. at 515. In other words, the Pennsylvania Supreme Court held that the underlying Batson claim was without merit. Because the Batson claim was meritless, Williams’ trial and appellate counsel could not have been ineffective for failing to raise it. Finally, the court rejected Williams’ contention that he was entitled to production of Foulkes’ contemporaneous handwritten notes, concluding that he had “fail[ed] to demonstrate exceptional circumstances existed which required production of the actual notes.” Id. at 515 n. 10 (citing 42 Pa. Cons.Stat. § 9545(d)(2) (“No discovery, at any stage of proceedings under this sub-chapter, shall be permitted except upon leave of court with a showing of exceptional circumstances.”)). Williams’ federal habeas petition presented both his Batson claim and the derivative claims" }, { "docid": "2724020", "title": "", "text": "composition of the venire and jury was clearly established. In short, the PCRA proceeding was comprehensive. Williams identifies no potential facts which a second evidentiary hearing is likely to unearth. The District Court quite accurately observed that “[n]o additional, relevant information would be gained from a federal hearing that cannot be gleaned from the state court record.” We agree. See Morris, 633 F.3d at 197 (explaining that an evidentiary hearing is warranted only if there are “critical issues of material fact” that remain unresolved). The District Court’s rejection of Williams’ discovery requests will be affirmed. 2 Application of the Uderra Rule On collateral appeal, the Pennsylvania Supreme Court determined that Williams waived his Batson claim because, as a matter of fact, “trial counsel did not raise a Batson objection during voir dire.” Williams II, 863 A.2d at 514. This was an unreasonable determination of facts in light of the evidence presented in the state court proceeding. The trial record is plain — and both parties agree — that Williams objected after the Commonwealth used its second peremptory challenge to dismiss an African American venireperson. Williams objected a second time after Foulkes exercised her fourth strike. Thus, the Pennsylvania Supreme Court’s fact-finding is clearly contradicted by the record. As a result of its mistake of fact, the Court did not address the Batson claim on its merits. The Pennsylvania Supreme Court did, however, indirectly address the Batson claim through its ineffective assistance inquiry. Specifically, Williams argued that trial counsel was ineffective for failing to insist that the Commonwealth provide race-neutral reasons for its challenges, and that appellate counsel was ineffective for neglecting to raise a Batson challenge on direct appeal. To assess the ineffective assistance claims, the Supreme Court queried whether Williams’ underlying Batson challenge was meritorious. It ultimately answered in the negative after applying its then-recent precedent, Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74 (2004). Uderra held that when a post-conviction petitioner fails to raise an adequate Batson challenge at trial, he or she is not entitled to rely upon Batson’s burden-shifting framework in a collateral attack; rather," }, { "docid": "23370320", "title": "", "text": "insufficient to establish the corpus delicti According to Pennsylvania’s corpus delicti rule, before introducing a criminal defendant’s out-of-court admission, “the Commonwealth must establish by independent evidence that a crime has in fact been committed.” Commonwealth v. Reyes, 545 Pa. 874, 681 A.2d 724, 727 (1996). A defendant’s confession “is not evidence in the absence of proof of the corpus delicti. ” Commonwealth v. Taylor, 574 Pa. 890, 831 A.2d 587, 590 (2002) (internal quotations omitted). In a murder prosecution, the corpus delicti consists of evidence that an individual is dead and that the death resulted from criminal means. Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77, 80 (1978). The Pennsylvania Supreme Court has described the application of the rule as a “two-tiered approach” having a “dual level of proof.” Reyes, 681 A.2d at 728. The first tier pertains solely to the admissibility of the defendant’s out-of-court confession. Id. at 727. At this stage, the trial court must determine whether the Commonwealth has established by a prepon derance of the evidence (apart from the confession) that a crime has in fact been committed. Id. at 727-28. Once the trial court admits the confession, the jury-may not consider the confession unless the Commonwealth proves the corpus delicti beyond a reasonable doubt. Id. at 728; Tallon, 387 A.2d at 81. Because Jacobs’ claim actually consists of three related but separate claims, he must show that he exhausted each of them. In his PCRA petitions, Jacobs does not mention the corpus delicti rule at all. In his brief on PCRA appeal, however, Jacobs argues that the trial court misapplied the corpus delicti rule and wrongly admitted his out-of-court statements, that the trial court failed to instruct the jury properly on the corpus delicti rule, and that all previous counsel were ineffective for failing to object to the trial court’s actions and failing to pursue the matter on direct appeal or in PCRA proceedings. Apparently, the Pennsylvania Supreme Court overlooked Jacobs’ challenge based on the trial court’s corpus delicti instruction. Plainly, the Pennsylvania Supreme Court addressed the merits of Jacobs’ assertion that “trial counsel" }, { "docid": "15137580", "title": "", "text": "direct appeal with a mind toward comparing the relative strength of the issues that counsel omitted to that of the ten propositions of law that counsel did raise, and fully mindful of all of the Mapes factors, this Court cannot conclude that petitioner’s appellate counsel performed deficiently or to petitioner’s prejudice in failing to raise the claims set forth above. More accurately, this Court cannot find that the Ohio Supreme Court’s one-line entry denying his claims of appellate counsel ineffectiveness was contrary to clearly established federal law. Petitioner argues that his appellate counsel performed deficiently and to his prejudice in failing to challenge trial counsel’s failure to ensure that petitioner’s waiver of his right to present mitigation evidence was knowing, intelligent, and voluntary. This Court considered and rejected that trial counsel ineffectiveness claim in rejecting petitioner’s first ground for relief, as well as ground two, sub-part (c). Because the underlying trial counsel ineffectiveness claim was not, in this Court’s view, meritorious, appellate counsel cannot be deemed ineffective for failing to raise it. Petitioner argues that his appellate counsel performed deficiently and to his prejudice in failing to challenge trial counsel’s failure to establish the blood type of blood evidence recovered from the crime scene. This Court considered and rejected that trial counsel ineffectiveness claim in rejecting ground two, sub-part (f). Because the underlying trial counsel ineffectiveness claim was not, in this Court’s view, meritorious, and because the claim inherently relied on evidence outside the trial record, appellate counsel cannot be deemed ineffective for failing to raise it on direct appeal. See State v. Burke, supra, 97 Ohio St.3d at 57, 776 N.E.2d 79 (“Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel.”) Petitioner argues that his appellate counsel performed deficiently and to his prejudice in failing to challenge trial counsel’s failure to challenge the prosecution’s evidence that a palm print found in the victim’s kitchen allegedly matched petitioner’s palm print. This Court considered and rejected that trial counsel ineffectiveness claim in rejecting ground two, sub-part (g). Because the underlying trial counsel ineffectiveness claim was" }, { "docid": "13816616", "title": "", "text": "Cir.2009); Rompilla v. Horn, 355 F.3d 233, 247-48 (3d Cir.2004), rev’d on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Our precedent “stand[s] for the proposition that, if an examination of the opinions of the state courts shows that they misunderstood the nature of a properly exhausted claim and thus failed to adjudicate that claim on the merits, the deferential standards of review in AEDPA do not apply.” Chadwick, 312 F.3d at 606. But when the state courts have “previously considered and rejected the federal claim on the merits,” the § 2254(d) standards do apply. Siehl v. Grace, 561 F.3d 189, 195 (3d Cir.2009). Boyd has claimed his trial counsel was ineffective on two different grounds. The first ground, initially presented on direct appeal in Pennsylvania Superior Court, was that trial counsel allegedly failed to give Boyd sufficient advice about the sentencing guidelines to allow him to make an informed decision about whether to accept the Commonwealth’s initial plea offer. Boyd does not dispute that the Pennsylvania Superior Court recognized this claim and decided it on the merits for purposes of 28 U.S.C. § 2254(d). On its way to denying this claim, the Pennsylvania Superior Court found, as a matter of fact, that Boyd’s counsel “fully informed [Boyd] about the availability of the original plea offer, but [Boyd] decided to take his chances on the discretion of the court as to sentencing.” Boyd contests this factual finding. Boyd first presented the second ground for trial counsel’s alleged ineffectiveness in his PCRA petition (i.e., on state collateral review), arguing that trial counsel provided ineffective assistance by rejecting the initial plea offer before discussing it with him. The PCRA Court did not recognize that Boyd’s claim was different from the one he had presented on direct appeal. It believed Boyd was again asserting that “guilty plea counsel was ineffective for advising defendant to reject a negotiated plea offer of four to eight years in light of the seriousness of the crimes charged,” rather than for rejecting the offer before consulting Boyd. Given this" }, { "docid": "15341479", "title": "", "text": "had failed to raise them properly. (Resp.Ex. B.) The Superior Court affirmed the trial judge’s dismissal of the PCRA petition in a memorandum opinion. Commonwealth v. Mattis, 742 A.2d 207 (Pa.Super.1999). Mattis then filed a petition for allowance of an appeal to the Pennsylvania Supreme Court raising the same claims. The Pennsylvania Supreme Court denied review. Commonwealth v. Mattis, 560 Pa. 701, 743 A.2d 917 (1999) (table). In his present federal petition for a writ of habeas corpus, Mattis raises the following three claims: (1) appellate counsel, John Griffin, Esquire, was ineffective for failing to raise a Brady claim in post-trial motions and on direct appeal; (2) the Pennsylvania courts did not provide a forum where the issues Mattis raised in his PCRA petition could receive a full and fair hearing; and (3) in finding that Mattis’s claims were previously litigated, the Superior Court effectively ruled on the antecedent claim that counsel was ineffective and found him not to have been ineffective; Mattis claims this ineffectiveness claim is a federal claim for this court to consider. (Pet. at ¶ 12.) Mattis also filed two supplemental memoranda in support of his petition. (Docs. No. 12,16.) In his second supplemental memorandum, Mattis amended his federal habeas petition to add a fourth substantive claim: (4) the Commonwealth’s Brady violations denied Mattis a fair trial. (Pet’s Second Supp. Mem. at 3.) Mattis further argues that he has shown a miscarriage of justice which excuses any claim of procedural default. (Pet. at 12.) In keeping with court policy we initially referred this matter to a magistrate judge, by order of January 10, 2000. Before the Court is a Report and Recommendation by Magistrate Judge Thomas J. Rueter, filed on September 29, 2000, which finds that the Court may review the merits of Mat-tis’s Brady claims and recommends that his federal habeas petition be granted, notwithstanding the fact that, as part of his direct appeal, Mattis never sought review of his claims by the Pennsylvania Supreme Court. The District Attorney of Philadelphia County, on behalf of Respondents, filed objections on October 16, 2000, to the Magistrate" }, { "docid": "2724021", "title": "", "text": "second peremptory challenge to dismiss an African American venireperson. Williams objected a second time after Foulkes exercised her fourth strike. Thus, the Pennsylvania Supreme Court’s fact-finding is clearly contradicted by the record. As a result of its mistake of fact, the Court did not address the Batson claim on its merits. The Pennsylvania Supreme Court did, however, indirectly address the Batson claim through its ineffective assistance inquiry. Specifically, Williams argued that trial counsel was ineffective for failing to insist that the Commonwealth provide race-neutral reasons for its challenges, and that appellate counsel was ineffective for neglecting to raise a Batson challenge on direct appeal. To assess the ineffective assistance claims, the Supreme Court queried whether Williams’ underlying Batson challenge was meritorious. It ultimately answered in the negative after applying its then-recent precedent, Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74 (2004). Uderra held that when a post-conviction petitioner fails to raise an adequate Batson challenge at trial, he or she is not entitled to rely upon Batson’s burden-shifting framework in a collateral attack; rather, the petitioner must prove actual, purposeful discrimination by a preponderance of the evidence. Uderra, 862 A.2d at 86-87. In Williams’ case, the Pennsylvania Supreme Court held that the evidence did not meet the threshold mandated by Uderra. The court thus determined that the underlying Batson challenge lacked merit and, accordingly, rejected both ineffective assistance claims. Williams II, 863 A.2d at 514-15. Neither ineffective assistance claim is before us today. The Commonwealth argues that the Pennsylvania Supreme Court’s application of the Uderra rule is reasonable and must therefore guide our inquiry into the merits of Williams’ Batson challenge. In other words, the Commonwealth argues that we should not apply the three-step Batson framework, but should instead simply ask whether Williams proved racial discrimination by a preponderance of the evidence. We disagree. As explained above, the Pennsylvania Supreme Court determined that Williams waived his Batson claim; thus, it did not apply Uderra to the claim. In fact, it did not address the claim at all. See Laird v. Horn, 414 F.3d 419, 424 (3d Cir.2005) (critiquing contention" }, { "docid": "13131371", "title": "", "text": "he was obligated to raise any ineffective assistance claims in that motion. The Pennsylvania Supreme Court overruled Hubbard in 2002, holding that \"as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002). \"Thus, any ineffectiveness claim will be waived only after a petitioner has had the opportunity to raise that claim on collateral review and has failed to avail himself of that opportunity.” Id. The court also held that the new rule would be applied retroactively to cases currently pending on direct appeal in which ineffective assistance claims had been raised and preserved, but not to cases pending on collateral review. Id. at 738-39 & n. 16. Of course, Villot's direct and collateral state proceedings had long been closed by the time Grant was issued, so the new rule has no application here. . Villot's counsel does not explain the basis of this claim in his briefing to this court, but the gist of the claim can be gleaned from Villot’s pro se brief in the district court and the Magistrate Judge’s report and recommendation. Villot claims that his plea counsel pressured him to plead guilty so that counsel could avoid cross-examining Adam Romero, the chief prosecution witness and counsel's former client, at trial. If this is the extent of Villot’s claim, it is simply a re-statement of Villot’s conflict of interest claim. The Pennsylvania Supreme Court has held that the \"previously litigated” prong of subsection (a)(3) bars simple variations of previously litigated claims as well as the exact claims themselves. See Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 166-67 (1999) (citation omitted). . This statement is qualified because we cannot and need not definitively state that Villot could not have raised any valid objections to application of the procedural default rule had the Superior Court relied on § 9543(a)(3) to deny his PCRA appeal. . This rule is inapplicable where the state court has not been presented with the federal claim. Harris, 489 U.S. at 263" }, { "docid": "15198648", "title": "", "text": "Commonwealth v. Everett, 399 Pa. Super. 646, 573 A.2d 1157 (1990). Allocatur was denied. Commonwealth v. Everett, 527 Pa. 585, 588 A.2d 507 (1991). In August 1995, Everett’s present counsel filed a fourth PCRA petition, alleging ineffective assistance at trial, in particular arguing that counsel’s failure to object to the definitions for accomplice liability given in the context of the trial court’s definition of first-degree murder resulted in a miscarriage of justice. The Court of Common Pleas reached the merits of this issue, holding that the jury charge was proper and that trial counsel was not ineffective. App. at 39-41. With regard to Everett’s ineffective assistance of counsel claims, that court said that: With respect to the issue of ineffectiveness, counsel is presumed to be effective and the defendant has the burden of proving ineffectiveness. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990)[.] In order to carry this burden the defendant must first show that the claim which counsel failed to raise has arguable merit and that counsel’s failure to raise it was without a reasonable basis which would effectuate the defendant’s best interests. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)[.] Second, the defendant must show that counsel’s ineffectiveness worked to his prejudice. App. at 40 (citations omitted). The court stated that Pennsylvania law on jury instructions for first-degree murder accomplice liability was not settled at the time, and therefore held that Everett’s counsel was not ineffective under state law. The Court of Common Pleas did not address Everett’s due process claim. The Superior Court affirmed the denial of PCRA relief in an unpublished memorandum opinion. Commonwealth v. Everett, 700 A.2d 1024 (Pa.Super.1997); App. at 33-37. The Superior Court recognized that the Pennsylvania Supreme Court had decided that a charge such as that given by the Everett trial judge was improper, citing Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982) (Bachert II), and Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994). App. at 36. In Bachert II, the Pennsylvania Supreme Court stated that “it is necessary to look" }, { "docid": "13816617", "title": "", "text": "Pennsylvania Superior Court recognized this claim and decided it on the merits for purposes of 28 U.S.C. § 2254(d). On its way to denying this claim, the Pennsylvania Superior Court found, as a matter of fact, that Boyd’s counsel “fully informed [Boyd] about the availability of the original plea offer, but [Boyd] decided to take his chances on the discretion of the court as to sentencing.” Boyd contests this factual finding. Boyd first presented the second ground for trial counsel’s alleged ineffectiveness in his PCRA petition (i.e., on state collateral review), arguing that trial counsel provided ineffective assistance by rejecting the initial plea offer before discussing it with him. The PCRA Court did not recognize that Boyd’s claim was different from the one he had presented on direct appeal. It believed Boyd was again asserting that “guilty plea counsel was ineffective for advising defendant to reject a negotiated plea offer of four to eight years in light of the seriousness of the crimes charged,” rather than for rejecting the offer before consulting Boyd. Given this mistaken formulation, it is not surprising that the PCRA Court concluded “defendant raised the exact issue on direct appeal that he is now raising in his PCRA petition” and, accordingly, dismissed the claim as “previously litigated.” The Commonwealth concedes “the PCRA court misidentified Boyd’s ineffectiveness claim.” Commonwealth’s Suppl. Br. 5; see also id. at 6 n. 3 (“[T]he PCRA court incorrectly described the ineffectiveness claim ... and never correctly identifies it....”). On PCRA appeal, however, the Pennsylvania Superior Court correctly identified Boyd’s claim, accurately describing the question presented as whether “trial counsel’s rejection of the [initial] offer before discussing it with [Boyd] rendered his assistance ineffective.” The Pennsylvania Superior Court correctly contrasted' this claim with Boyd’s claim on direct appeal that “his trial counsel was ineffective in failing to discuss a plea agreement in which [he] would have received a sentence in the mitigated range of the sentencing guidelines.” The highest state court to review Boyd’s petition, therefore, did not “misunderst[and] the nature” of his PCRA claim. Chadwick, 312 F.3d at 606. The Pennsylvania Superior" }, { "docid": "22901738", "title": "", "text": "excuse the procedural default of his ineffective assistance of trial counsel claims. VI. Analysis of the Merits of Petitioner’s Ineffective Assistance of Appellate Counsel Claims Each of Petitioner’s ineffective assistance of appellate counsel claims alleges a failure on the part of counsel to raise a certain issue on direct appeal. For convenience, we group these claims into the following five categories: (1) Ineffective assistance of trial counsel (guilt phase); (2) ineffective assistance of trial counsel (penalty phase); (3) prosecutorial misconduct; (4) jury instructions; and (5) miscellaneous. We will 'now review the merits of these claims with the exception of the prosecutorial misconduct arguments, which we will address separately in Part VII. A. Ineffective Assistance of Trial Counsel (Guilt Phase) Petitioner argues that his appellate counsel were constitutionally ineffective for failing to raise certain claims of alleged ineffective assistance of trial counsel at the guilt phase of his trial. These claims are completely without merit. First, petitioner alleges that his trial counsel were constitutionally ineffective for failing to file a motion for discovery as to the existence of any deals between the prosecution and any of its witnesses. There is no evidence whatsoever that any such deals existed, and the common pleas court made specific findings to this effect in denying Petitioner’s post-conviction petition. Petitioner also contends that trial counsel were ineffective for failing to retain experts to test the State’s physical evidence. Petitioner maintains that counsel should have obtained a criminologist to analyze evidence regarding blood stains that were found on Petitioner’s clothing and on a knife found in the van, and shoe prints that were taken from the crime scene. However, the common pleas court found that “[t]he jury was aware that exhibit 7, the knife, could not be shown to be the murder weapon, that the blood stains could not be shown to be the victim’s and that the shoe prints were not those of defendant Byrd.” State v. Byrd, No. B-831662 (Hamilton County C.P. Oct. 2, 1989). The court further found that “[t]he source of the blood which was tested and testified to at trial was not" }, { "docid": "23552277", "title": "", "text": "consideration of ineffective assistance of counsel claims to collateral review, making Martinez applicable to its criminal procedural system. At the time Cox’s direct appeal and PCRA proceeding were being adjudicated by the Pennsylvania courts, however, Pennsylvania required a criminal defendant to raise ineffective assistance claims at the earliest stage of proceedings during which he was no longer represented by the allegedly ineffective lawyer, for example, the post-trial motions phase or direct appeal. Id. at 729; Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 & n. 6 (1977). The District Court determined that, because Cox was represented by the same attorney at trial and on direct appeal to the Superior Court, his PCRA proceeding presented the first opportunity to raise an ineffective assistance of trial counsel claim and Martinez, therefore, applied. The Commonwealth appellees argue that Martinez does not apply to pr e-Grant Pennsylvania and that, in any event, Cox availed himself of the opportunity to raise ineffective assistance claims before the trial court and the Pennsylvania Supreme Court. We do not decide whether, as a general matter, Pennsylvania's pr e-Grant legal landscape falls within the ambit of the Martinez rule. We note simply that appellees have not established why the District Court erred in concluding that, under the pr e-Grant procedural paradigm, defendants who, like Cox, were represented by the same counsel at trial and on direct appeal did not have a realistic opportunity to raise an ineffective assistance of trial counsel claim until collateral review. Extant Pennsylvania precedent made clear that Cox was not obligated to assert such a claim until trial counsel had been relieved of his representation. Cox was entitled to rely on that guidance, and, therefore, did not have to raise his ineffective assistance claims until PCRA review. See Trevino, 133 S.Ct. at 1919-20; Sutton v. Carpenter, 745 F.3d 787, 793-94 (6th Cir.2014). It is true that trial counsel no longer represented Cox in his petition for allocatur to the Pennsylvania Supreme Court. Given the “unlikely and unpredictable” manner in which allocatur is granted by that court, however, a petition for allocatur had never" }, { "docid": "9677383", "title": "", "text": "pertinent part that (1) the most that the additional four mitigation witnesses could have testified to was the defendant’s good character, and therefore, their testimony would have been cumulative of the mitigation evidence presented; and (2) Williams refused to give Collins information that would have been helpful for mitigation purposes. Based upon these factual findings, the court ruled that Collins rendered effective assistance of counsel at the penalty phase. The trial court also stated that to the extent that Collins’s actions were deficient at the penalty phase, based on the aggravating and mitigating evidence presented, there was no reasonable probability that the sentencing jury would have concluded that death was not the appropriate penalty. On direct appeal, the Supreme Court of Georgia affirmed the trial court’s ruling on the ineffective assistance claim. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988). Williams filed a state habeas petition in Butts County, Georgia, and again raised a claim of ineffective assistance of trial counsel based on the same errors previously alleged in his motion for new trial. In this petition, Williams also claimed that Allen had rendered ineffective appellate representation during the motion for new trial because Allen also had failed to conduct a reasonable independent investigation into Williams’s background. As a result, Allen failed to proffer significant mitigating evidence of childhood abuse and mental problems to show that Collins’s preparation for the penalty phase was unreasonable and prejudicial. The state court denied habeas relief and ruled that Allen had provided effective assistance. In its order denying relief, the court made no mention of the newly proffered mitigating evidence of abuse and mental illness. Indeed, the court did not even address the merits of the ineffective assistance of trial counsel claim because Williams “ha[d] not shown any change in the facts or law which pertain to his [claim of ineffective assistance of trial counsel].” Based upon the record, the court apparently did not consider Williams’s allegations, which had never been considered in any earlier proceedings, before affirming the denial of the motion for new trial on the claim of ineffective assistance" }, { "docid": "15137581", "title": "", "text": "his appellate counsel performed deficiently and to his prejudice in failing to challenge trial counsel’s failure to establish the blood type of blood evidence recovered from the crime scene. This Court considered and rejected that trial counsel ineffectiveness claim in rejecting ground two, sub-part (f). Because the underlying trial counsel ineffectiveness claim was not, in this Court’s view, meritorious, and because the claim inherently relied on evidence outside the trial record, appellate counsel cannot be deemed ineffective for failing to raise it on direct appeal. See State v. Burke, supra, 97 Ohio St.3d at 57, 776 N.E.2d 79 (“Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel.”) Petitioner argues that his appellate counsel performed deficiently and to his prejudice in failing to challenge trial counsel’s failure to challenge the prosecution’s evidence that a palm print found in the victim’s kitchen allegedly matched petitioner’s palm print. This Court considered and rejected that trial counsel ineffectiveness claim in rejecting ground two, sub-part (g). Because the underlying trial counsel ineffectiveness claim was not, in this Court’s view, meritorious, and because the claim inherently relied on evidence outside the trial record, appellate counsel cannot be deemed ineffective for failing to raise it on direct appeal. See State v. Burke, supra, 97 Ohio St.3d at 57, 776 N.E.2d 79. Finally, petitioner argues that his appellate counsel performed deficiently and to his prejudice by failing to argue on direct appeal that petitioner’s death sentence was imposed in an arbitrary and capricious manner in violation of his rights under the Eighth Amendment because the jury was prevented from hearing relevant mitigation evidence due to petitioner’s invalid waiver of mitigation without having his competency examined. This Court considered and rejected that argument in rejecting petitioner’s first and sixth grounds for relief. Because that claim was not, in this Court’s view, meritorious, appellate counsel cannot be deemed ineffective for failing to raise it. For the foregoing reasons, the Court concludes that petitioner has failed to demonstrate that his appellate counsel performed deficiently or to his prejudice in failing to raise the four issues" }, { "docid": "22003865", "title": "", "text": "direct appeal to this Court. In other capital cases, however, we have held that certain issues were waived for failure to raise them before the trial court. In light of this, the Commonwealth has argued in the alternative — waived or not, the appellant’s claim of improper use of peremptories is without merit. Id. (citation omitted). Without stating whether it was relaxing the waiver rule or not, the court proceeded to discuss the merits of Abu-Jamal’s Batson claim and deny relief. On collateral review, the PCRA court recognized the Pennsylvania Supreme Court’s discussion on the merits as an “alternative resolution” of the Batson claim. PCRA Op., 1995 WL 1315980, at * 103. Nonetheless, it concluded that the claim was not subject to further review under 42 Pa. Cons.Stat. § 9544(a) because it had been previously litigated on the merits. Id. at *102. Further, the PCRA court readdressed the merits of the Batson claim after the Commonwealth withdrew a previous objection to the introduction of new evidence and a stipulation was admitted. The PCRA court concluded that “to the extent the instant claim was cognizable, it was [Abu-Jamal’s] burden to prove that the [Pennsylvania Supreme Court’s] analysis was in some respect incorrect. This, he fails to do.” Id. at *104. On appeal of the denial of state collateral relief (PCRA), Abu-Jamal challenged the previous Batson rulings on ineffective assistance of counsel grounds as well as on the merits. The Pennsylvania Supreme Court found that Abu-Jamal’s argument as to the specific instances [of ineffective assistance] is largely redundant as he has elsewhere in this appeal raised the underlying merits respecting each of those instances and therein also included a claim of counsel’s ineffectiveness. Accordingly, as this court has found no merit to any of those underlying claims, we need not, at this point, again individually analyze the claims since there can be no finding of ineffectiveness where the underlying claim lacks merit. PCRA Appeal Op., 720 A.2d at 108. The court implied that it first addressed the claims on the merits, then denied relief on the specific claims of ineffective assistance due" }, { "docid": "15137573", "title": "", "text": "Court finds that reasonable jurists could find its decision debatable or wrong and accordingly certifies ground thirteen for appeal. Fourteenth Ground for Relief: Petitioner was denied the effective assistance of appellate counsel when appellate counsel failed to present meritorious issues for review in petitioner’s direct appeal thereby violating petitioner’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Petitioner argues in his fourteenth ground for relief that his appellate attorneys performed deficiently and to his prejudice by failing to raise certain meritorious claims on direct appeal. Specifically, peti tioner contends that appellate counsel were ineffective for failing to raise the following issues: (1) Trial counsel were constitutionally ineffective when they failed to ensure that Appellant’s waiver of his right to present mitigation evidence was knowing, intelligent, and voluntary.' (2) Trial counsel were constitutionally ineffective when they failed to establish the blood type found on a swab of blood taken from the crime scene, and to determine whether it belonged to the victim, the defendant, or some unknown assailant. (3) Trial counsel were constitutionally ineffective when they failed to challenge the state’s evidence that a palm print, found in the victim’s kitchen, allegedly matched Appellant’s palm print. (4) Appellant’s death sentence was imposed in an arbitrary and capricious manner, in violation of the Eighth Amendment, when the jury was prevented from hearing relevant mitigation evidence due to Appellant’s invalid waiver of mitigation without having his competency examination. (Doc. # 68.) Respondent, in addition to arguing that this claim was procedurally defaulted and time-barred, argues that this claim is without merit. (Doc. # 76, at 6-27.) Respondent acknowledges that the Supreme Court recognizes a constitutional right to effective assistance of counsel on direct appeal. Respondent argues, however, that controlling Supreme Court precedent does not impose on appellate counsel a duty to raise every conceivable non-frivolous issue. Respondent then goes on to re-visit its arguments against the merits of the underlying issues that appellate counsel were allegedly ineffective for failing to raise, and concludes that because those underlying claims are without merit, appellate counsel cannot be deemed" }, { "docid": "13131370", "title": "", "text": "defendant to enter involuntary guilty plea). . Of course, the scope of relief provided must be consistent with the state’s own constitutional law, but that issue is not before the court. . A claim has been previously litigated if \"the highest court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa. Cons.Stat. § 9544(a)(2). A claim has been waived \"if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postcon-viction proceeding.” Id. at § 9544(b). . Until recently, defendants in Pennsylvania had to raise any ineffective assistance claims \"at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant,” or else these claims would be considered waived. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977). Because Villot obtained new counsel before he made his motion to withdraw his guilty plea, he was obligated to raise any ineffective assistance claims in that motion. The Pennsylvania Supreme Court overruled Hubbard in 2002, holding that \"as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002). \"Thus, any ineffectiveness claim will be waived only after a petitioner has had the opportunity to raise that claim on collateral review and has failed to avail himself of that opportunity.” Id. The court also held that the new rule would be applied retroactively to cases currently pending on direct appeal in which ineffective assistance claims had been raised and preserved, but not to cases pending on collateral review. Id. at 738-39 & n. 16. Of course, Villot's direct and collateral state proceedings had long been closed by the time Grant was issued, so the new rule has no application here. . Villot's counsel does not explain the basis of this claim in his briefing to this court, but the gist of" }, { "docid": "11822938", "title": "", "text": "Consistent with this view of the Rule, Davie claimed in his Rule 26(B) application that his direct appeal should be reopened because his appellate counsel was ineffective for, among other things, failing to raise the “acquittal-first” jury instruction argument. JA 2768. As this court has previously noted, however, bringing an ineffective assistance claim in state court based on counsel’s failure to raise an underlying claim does not preserve the underlying claim for federal habeas review because “the two claims are analytically distinct.” White v. Mitchell, 431 F.3d 517, 526 (6th Cir.2005). Thus, a Rule 26(B) application “based on ineffective assistance cannot function to preserve” the underlying substantive claim. Id.; see also Roberts v. Carter, 337 F.3d 609, 615 (6th Cir.2003) (noting that, “[i]n light of the requirements of Rule 26(B), the court’s holding must be read as pertaining to the merits of’ the ineffective assistance claim, not the underlying state procedural rule claim). From this, it follows that Davie’s Rule 26(B) application cannot be construed as raising the substantive “acquittal-first” claim. And because the Ohio courts determined that Davie failed to demonstrate a “genuine issue” that his appellate counsel was ineffective for failing to raise that claim, the courts refused to open Davie’s direct appeal, thereby imposing a procedural bar to consideration of the claim. As a consequence, Davie’s substantive “acquittal-first” claim is procedurally defaulted— Davie failed to bring the claim on direct and collateral review in state court, and the state courts determined that Davie did not make the requisite showing in his Rule 26(B) application to justify reopening his direct appeal. Accordingly, our review in this case is limited to Davie’s claim that his counsel was ineffective for failing to raise the “acquittal-first” argument, a claim that was adjudicated in the state courts. It is true that if this court were to find that Davie’s ineffective assistance claim has merit, that could serve as cause to excuse the procedural default of the substantive “acquittal-first” claim. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). But it is necessary to make that determination" } ]

[ { "docid": "2582280", "title": "", "text": "(1966) [Hedgepeth /]. Time is the most important factor; the longer the delay between arrest and trial the heavier the burden on the Government will be in arguing that the right to a speedy trial has not been abridged. The defense claim has prima facie merit if the lapse between arrest and trial is longer than one year. 124 U.S.App.D.C. at 293, 364 F.2d at 686; Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969). On reviewing the intervening events, however, the court must also balance the other factors to be considered: the reasons for the delay, the diligence vel non of the prosecutor, court, and defense counsel, “and the likelihood, or at least reasonable possibility, that defendant has been prejudiced by the delay.” Issue of Possibility of Prejudice It must be recognized that when the delay is caused by the time required for trial of other cases, there is less possibility of “prejudice to the person” than in other cases. In the instant case, appellant’s detention stemmed from his arrests on other charges. And the anxiety of overhanging prosecutions was then necessarily with him, for as long as it took to dispose of all pending prosecutions. There remains, however, the second aspect of the dual protection provided by the Sixth Amendment, the protection against “prejudice to a defendant’s defense.” Hedgepeth v. United States, 125 U.S.App.D.C. 19, 22, 365 F.2d 952, 955 (1966) [Hedgepeth II]. It is at this point that I part ways with Judge MacKinnon. His opinion states that delay “alone is not dispositive; there must be some resulting prejudice.” (p. 1118, infra.) But the rule does not require that defendant show prejudice; as stated above, defendant must show only a “reasonable possibility” that his defense has been prejudiced by the delay. In this case, a possibility of prejudice arises from the combination of delay and the difficulty of establishing the defense version of the clothes worn by defendant on the critical date of the offense. The defendant testified that he could remember the" } ]

[ { "docid": "8060511", "title": "", "text": "advice of counsel, it was in error. And, without counsel, we have no basis for assuming that appellant had either the ability or the information on which to make an intelligent and voluntary waiver of his right to a speedy trial. Furthermore, we think that by its failure to offer any explanation or justification for the delay, the Government has tacitly assumed full responsibility for it here. The Government rests its ease on appeal solely on the issue of possible prejudice to the accused. Its single position is that the evidence of guilt is so overwhelming as to negate any inference of prejudice to appellant in the preparation of his defense. See Harling v. United States, 130 U.S.App.D.C. 327, 330-331, 401 F.2d 392, 395-396 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969) (While a “slight showing of possible prejudice * * * might have entitled defendant to relief * * here there was not “even a wisp of prejudice.”); Taylor v. United States, 99 U.S.App.D.C. 183, 186, 238 F.2d 259, 262 (1956) (The case against appellant was “weak.” Had it been “overwhelming,” a different result might have been reached.). In its brief, the Government’s review of the facts demonstrates that its confidence in the guilt of the accused depends almost entirely on the testimony of Mr. Valentine. It is his assertion' — • that appellant was the same man whom he had chased into the alley — that provides the foundation for the prosecution’s case. While we are satisfied that his testimony was sufficient to send this case to the jury, we are not so sanguine as is the Government that it demonstrates guilt so unequivocally that no occasion for prejudice due to the lengthy delay could have arisen. Of course, the Government is correct in pointing out that all the critical evidence in this case goes to the question whether the man who emerged from the alley was the same man who went in several minutes before. In alleging prejudice, it is the evidence on precisely this question that appellant attacks. At the dismissal" }, { "docid": "2582303", "title": "", "text": "accused to a speedy trial has been denied: [T]he question whether there has been denial of the right to a speedy trial depends on the circumstances of the case, and requires consideration of the length of the delay; reasons for the delay; diligence of prosecutor, court and defense counsel; and reasonable possibility of prejudice from the delay. Hedgepeth v. United States, 125 U.S.App. D.C. 19, 21, 365 F.2d 952, 954 (1966). Time alone is not dispositive; there must be some resulting prejudice. Hedgepeth v. United States, 124 U.S.App. D.C. 291, 294, 364 F.2d 684, 687 (1966). In Harling v. United States, 130 U.S. App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L. Ed.2d 711 (1969), we held that a delay of nearly two years did not violate the constitutional guarantee since the defendant for most of the time was free on bail, and there was no claim that the defense was in any way impaired or that any proof was lost. However in Coleman v. United States, 142 U.S.App.D.C. 150, 442 F.2d 150 (decided March 8, 1971), we found a denial of a constitutional right in a 20-month delay where the accused was incarcerated in Maryland and available for trial. Whether appellant was denied his right to a speedy trial by the 30-month interval here between arrest and trial requires an analysis of all the factors that caused such result. In making such analysis at the outset it is recognized that this question cannot be considered as though appellant was only charged with one offense. In addition to the instant indictment he was actually charged in three indictments with five separate and additional offenses that eventually required five substantial trials in the ten months and twenty-seven days between April 23, 1968 and March 17, 1969 and two more trials in the five months and sixteen days up to September 3, 1969. In all, seven trials were required. The 30-month delay is analyzed by looking at it in three segments. (I) The period between March 2, 1967 and February 20, 1968 A period of" }, { "docid": "23410943", "title": "", "text": "inhere in all cases where the delay is particularly long must be weighed against the other considerations we have mentioned. If this were a case where the delays could not be explained or justified by the Government, or where the defendant’s ability to present a defense was demonstrably affected, or where the Government’s case on the merits was close, then the balance between the interest of the public and the protection of the individual might be different. Here, however, the balance is otherwise. The remaining claims of error are without merit. Appellant first argues that the second count of the federal indictment, charging him with receiving a bribe, fails to state a crime under 18 U.S.C. § 201(g) because, in his submission, that section only prohibits receiving money for actions which are currently or may in the future be pending before a public official, and does not apply to acts already completed. Although his precise line of reasoning is difficult to follow, we have no doubt that Congress intended to reach demands for and acceptances of money for acts already performed, and that the statutory prohibition is not so vague that men must necessarily guess at its meaning. The statute prohibits the receipt of money “for or because of any official act performed or to be performed,” 18 U.S.C. § 201(f) (emphasis added). So defined, the statute clearly reaches the alleged transaction here. See United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966). Second, appellant contends that the attachment of the audio-surveillance device to Carrico rendered the subsequent arrest invalid and all evidence of the transaction inadmissible. Conceding that the use of the device was not improper under the Fourth Amendment, United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), he contends nevertheless that it violated Section 605 of the Communications Act, 47" }, { "docid": "23410941", "title": "", "text": "this lapse of three months had such an effect. Following the federal indictment, the case proceeded with reasonable alacrity, and the record suggests that the delays that did occur were at the instance, or with the acquiescence, of appellant. For example, on the very eve of trial appellant’s counsel introduced a motion to dismiss based on an entirely new theory of law. The Government strenuously objected to any delay in the proceedings that consideration of this last-minute motion would entail: THE COURT: We set this case two months ahead so that everybody could be ready to go, and now to hit me with a last-minute motion that has nothing but the effect of delay doesn’t make me very happy. I am ready to throw the case over unless you are ready to go forward. ASSISTANT U. S. ATTORNEY: We are ready to go forward, your Honor. . APPELLANT’S COUNSEL: Your Honor, I feel very bad about the delay, but I don’t think I can withdraw the motion. The foregoing analysis of the delays in this case reflects no neglect, indifference, or lack of reasonable diligence on the part of the Government. Turning then to appellant’s claim of prejudice, we note that (1) at all times he was free on bond, (2) he has never claimed the unavailability of any witness as a result of the delay, (3) his preparation for the first trial in 1969 diminished the likelihood that his ability or the ability of his witnesses to recall the critical facts had irreparably faded, and (4) the case against him, in light of his remarks to the arresting officers, was strong. We have intimated that when the delay in prosecution exceeds twelve months, prejudice to the defendant is presumed and need not be affirmatively shown. See United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 256 (1971); Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969). But even the prejudice which is presumed to" }, { "docid": "8673421", "title": "", "text": "allowed convictions in such cases to stand. In such cases we have either dealt with delays which were not of long duration, Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F. 2d 684 (1966); Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S. Ct. 725, 21 L.Ed.2d 711 (1969), or where the case has been of such a complicated nature as to require more time than would usually be permissible, Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363 (1965); Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). In other instances, it has been said that a deliberately slow pace should be taken in order to protect the rights of the accused. In Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 21 L.Ed.2d 221 (1969), this court held a 21-month delay to be permissible where 15 of the 21 months were devoted to mental examinations of the defendant. In Blunt, we said: “where a principal cause of postponement is the deliberate pace of the system of safeguards designed to protect the accused, the courts have been exceedingly reluctant to find constitutional infirmity even in very long delays.” Blunt v. United States, supra,, 131 U.S.App. D.C. at 310, 404 F.2d at 1287. Similarly, we have allowed convictions to stand in certain instances where the administration of justice has dictated that certain priorities be followed in dealing with criminal cases. In Wilkins v. United States, 129 U.S.App.D.C. 397, 395 F. 2d 620 (1968), we allowed a conviction to stand where there had been a 16V2-month delay which had been occasioned by a policy of bringing imprisoned defendants to trial prior to defendants who had been released pending trial. The Supreme Court held that a 19-month delay was not violative of the Sixth Amendment when there had been more than one indictment. We cannot agree that the passage of 19 months between the original arrests and the hearings" }, { "docid": "2582302", "title": "", "text": "the time to meet them is when the case is fresh. Stale claims have never been favored by the law, and far less so in criminal cases. Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial. This is brought sharply into focus when, as here, the accused presses for an early confrontation with his accusers and with the State. Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable. Here, however, no valid reason for the delay existed; it was exclusively for the convenience of the State. On this record the delay with its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law. 398 U.S. at 37-38, 90 S.Ct. at 1568-1569. We have also previously set forth the general principles by which courts determine whether the constitutional right of an accused to a speedy trial has been denied: [T]he question whether there has been denial of the right to a speedy trial depends on the circumstances of the case, and requires consideration of the length of the delay; reasons for the delay; diligence of prosecutor, court and defense counsel; and reasonable possibility of prejudice from the delay. Hedgepeth v. United States, 125 U.S.App. D.C. 19, 21, 365 F.2d 952, 954 (1966). Time alone is not dispositive; there must be some resulting prejudice. Hedgepeth v. United States, 124 U.S.App. D.C. 291, 294, 364 F.2d 684, 687 (1966). In Harling v. United States, 130 U.S. App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L. Ed.2d 711 (1969), we held that a delay of nearly two years did not violate the constitutional guarantee since the defendant for most of the time was free on bail, and there was no claim that the defense was in any way impaired or that any proof was lost. However in Coleman v. United States, 142" }, { "docid": "2582318", "title": "", "text": "124 U.S.App.D.C. at 294, 364 F.2d at 687; Hedgepeth v. United States, 125 U.S.App.D.C. 19, 21, 365 F.2d 952, 954 (1966) ; Harling v. United States, 130 U.S.App.D.C. 327, 330, 401 F.2d 392, 395 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969) (“Even a slight showing of possible prejudice, inflamed by the fact of long and unjustified delay, might have entitled defendant to relief from continued jeopardy.”) ; Hinton v. United States, 137 U.S.App.D.C. 388, 392, 394, 424 F.2d 876, 880, 882 (1969) (“significant possibility of prejudice to the defense”) ; Coleman v. United States, 142 U.S.App.D.C. 150, 442 F.2d 150, (decided March 8, 1971) (At 408, 442 F.2d at 156: “While we are satisfied that [the] testimony was sufficient to send this case to the jury, we are not so sanguine as is the Government that it demonstrates guilt so unequivocally that no occasion for prejudice due to the lengthy delay could have arisen.”) . Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Standards Relating to Speedy Trial § 2.2 (Approved Draft 1968). . Dickey v. Florida, 398 U.S. 30, 37 n. 7, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). . ABA Standards, supra, note 4, Commentary to § 2.2 at 17. . District Court Local Rule 87(h) and (j), quoted in Harling v. United States, supra note 2, 130 U.S.App.D.C. at 329 n. 3, 401 F.2d at 394 n. 3. The Local Rule was revised on August 1, 1968; the substantially similar Ready Calendar provisions were placed under Rule .87 (g) and (j). Rule 87 was suspended on September 10, 1969, when the former master calendar system was replaced by the individual calendaring system now in use in the District Court. See Local Rule 77, adopted May 1, 1970. Appellant’s trial in the instant case was on September 3-5, 1969, so the trial and all delays incident thereto took place under the old rules. . Tr. 8. . As revealed by a supplemental" }, { "docid": "8673420", "title": "", "text": "has placed a provision in the Federal Rules of Criminal Procedure which requires dismissal of a case against a defendant in the case of undue delay. “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.” Rule 48(b), Fed.R.Crim.P. Similarly, Congress has placed an even greater onus on the district court in cases where the defendant is incarcerated rather than released on bail. Rule 46(h), Fed.R.Crim. P. It is clear that “the burden is on the Government, not the defense, to bring a case to trial.” Smith v. United States, 135 U.S.App.D.C. 284, 288, 418 F.2d 1120, 1124 (1969), citing McNeill v. United States, No. 21,570, (D.C.Cir. June 4, 1968) (unreported). In certain cases this court has found the delay alleged by defendants not to be “arbitrary, capricious, or vexatious” and has consequently allowed convictions in such cases to stand. In such cases we have either dealt with delays which were not of long duration, Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F. 2d 684 (1966); Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S. Ct. 725, 21 L.Ed.2d 711 (1969), or where the case has been of such a complicated nature as to require more time than would usually be permissible, Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363 (1965); Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). In other instances, it has been said that a deliberately slow pace should be taken in order to protect the rights of the accused. In Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 21 L.Ed.2d 221 (1969), this court held a 21-month delay to be permissible where 15 of the 21 months" }, { "docid": "2582317", "title": "", "text": "request and some of which could be said to be for the exclusive benefit of the Government. The rationale of this opinion does not impose any obligation upon appellant to request an earlier trial date for this case but he cannot escape his share of responsibility for the very considerable delays which were caused by the continuances he requested and by the time necessarily consumed by the other trials which were the result of his conduct. Also his motions for continuance of the case to other dates necessarily involved an implicit consent to not try this case during that period or at the date fixed for the trial of the case that was continued. It is accordingly my conclusion, after full consideration of all the reasons for not reaching the seventh trial until September 3, 1969, that the Sixth Amendment rights of appellant were not violated and that the judgment of conviction should be affirmed. . Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). [Hedgepeth I]. . Hedgepeth I, supra, 124 U.S.App.D.C. at 294, 364 F.2d at 687; Hedgepeth v. United States, 125 U.S.App.D.C. 19, 21, 365 F.2d 952, 954 (1966) ; Harling v. United States, 130 U.S.App.D.C. 327, 330, 401 F.2d 392, 395 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969) (“Even a slight showing of possible prejudice, inflamed by the fact of long and unjustified delay, might have entitled defendant to relief from continued jeopardy.”) ; Hinton v. United States, 137 U.S.App.D.C. 388, 392, 394, 424 F.2d 876, 880, 882 (1969) (“significant possibility of prejudice to the defense”) ; Coleman v. United States, 142 U.S.App.D.C. 150, 442 F.2d 150, (decided March 8, 1971) (At 408, 442 F.2d at 156: “While we are satisfied that [the] testimony was sufficient to send this case to the jury, we are not so sanguine as is the Government that it demonstrates guilt so unequivocally that no occasion for prejudice due to the lengthy delay could have arisen.”) . Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ;" }, { "docid": "7727111", "title": "", "text": "unnecessary. The Government further argues that in the pre-accusatory context, delay within the statute of limitations will not bar a criminal prosecution unless either there is specific demonstrable prejudice to the defendant’s ability to defend himself or the Government’s conduct was intentional and for the purpose of gaining a tactical advantage over the defendant. This court has recently discussed at some length the standards for assessing claims of pre-accusatory delay. See United States v. Barket, 530 F.2d 189 (8th Cir. 1976). There we said the determination of such a claim involves “a process of balancing the reasonableness of the delay against any resultant prejudice to the defendant.” The test for determining prejudicial impact is whether the delay “has impaired the defendant’s ability to defend himself,” and the trial court’s finding on the prejudice issue must stand unless clearly erroneous. [Slip op. at 193 (emphasis added, citations omitted).] The classic type of prejudice is the death or unavailability of a material witness. In Barket, the court found that during the 47-month delay, “six material witnesses had died and others had faded memories of events crucial to Barket’s defense.” Id. at 5; cf. United States v. Lovasco, 532 F.2d 59, No. 75-1852 (8th Cir., Feb. 23, 1976). Although Naftalin makes a claim that an important witness has died, the district court found that, assuming the relevance of the alleged witness’ testimony, his dealings with Naftalin could be established from his and Naftalin’s records and that his death therefore did not cause substantial prejudice. Undeniably, as the delay increases, the specificity with which prejudice must appear, diminishes. Particularly in cases hinging on identification by one or few eyewitnesses, delay raises a “lurking danger of misidentification.” Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847, 853 (1972). Also, the inability of the accused to recall his conduct on an unremarkable day in the distant past may bar prosecution in some cases. For example, [t]he people [in the drug subculture] simply do not have desk pads and social calendars to assist them in determining where they were at a particular time many months before." }, { "docid": "8596202", "title": "", "text": "U.S. at 532, and mentioned three such interests identified in its prior decisions: (1) the prevention of oppressive pretrial incarceration; (2) the minimization of anxiety and concern of the accused; and (3) the limitation of prejudice to the accused’s ability to defend. 407 U.S. at 532. Appellant was incarcerated for approximately twenty-two months, including the detention in the hospital prior to his release under the work-release program. Ordinarily, such an extended pretrial, incarceration might be viewed as seriously prejudicial. But appellant’s failure to assert his rights weakens the suggestion that he suffered substantial personal prejudice in the form of either oppressive pretrial incarceration or anxiety and concern during that interval. There is no indication in the record that appellant was even treated any differently from other patients at the hospital. We hesitate to conclude that the detention of a drug addict like appellant in a hospital, where he is subject to positive influences and is the recipient of rehabilitative efforts is, without more, necessarily oppressive or productive of anxiety on his part, particularly where he has made no complaint. In addition, whatever pretrial prejudice resulted from personal anxiety and restraint on appellant’s liberty after his November 5, 1970 motion to dismiss for lack of a speedy trial, during which time he was in the work-release program, does not appear substantial from anything that appellant has suggested. Appellant relies primarily on cases decided by this court that suggest that when the delay in prosecution exceeds one year, prejudice is presumed and need not be affirmatively demonstrated. See, e. g., United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 257 (1969); Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684 (1966). We need not at this time decide to what extent these precedents remain viable after Barker. It is sufficient to note that this court has previously declared that “even' the prejudice which is presumed to inhere" }, { "docid": "4452247", "title": "", "text": "3282. Of the seven month delay between the filing of the complaint and the indictment, most was attributable to appellant’s efforts to block his removal from New Jersey. The remaining delay was not unreasonable. See United States v. Napue, 401 F.2d 107, 115 (7th Cir. 1968), cert. denied 393 U.S. 1024, 89 S. Ct. 634, 21 L.Ed.2d 568, reh. denied 393 U.S. 1112, 89 S.Ct. 858, 21 L.Ed.2d 813. (b) Due Process In support of his due process argument, appellant relies upon Ross v. United States, 121 U.S.App.D.C. 233, 349 F. 2d 210 (1965). In that case the D.C. Circuit held that deliberate delay in bringing criminal charges might constitute a denial of due process where as a consequence the defendant was materially prejudiced in his defense. Although Ross has been questioned as a constitutional precedent, this court has applied similar due process principles in instances where pre-prosecution delays have been asserted. United States v. Bray, 442 F.2d 1064 (9th Cir. 1971); United States v. Walton, 411 F.2d 283 (9th Cir. 1969). However, in this case, even if such principles are applied, the record shows no deprivation of due process. The crime was committed in June 1969, but it was not until March of the following year that the authorities were sufficiently aware of appellant’s participation in the robbery to file a complaint against him. At least from this time, appellant was apprised that a trial would probably follow. The government’s delay in not securing an indictment until October was justified in part by the fact that appellant was in custody in New Jersey and resisted removal to California; the government could not have brought him to trial until he was returned to California in late August. The government offered no reason to justify the delay in securing the indictment following appellant’s return, other than the need for time to prepare the case for presentation to the grand jury. Nevertheless, we are not prepared to say that the lapse of some seven weeks is per se prejudicial. Nor has appellant shown prejudice. Unlike the situation in the Ross case, where" }, { "docid": "941195", "title": "", "text": "States, 137 U.S.App. D.C. 388, 424 F.2d 876 (1969) ; Bynum v. United States, 133 U.S.App.D.C. 4, 6, 408 F.2d 1207, 1209 (1968), cert. denied 394 U.S. 935, 89 S.Ct. 1211, 22 L.Ed.2d 466 (1969); cf. Harling v. United States, 130 U.S.App.D.C. 327, 330, 401 F.2d 392 (1968), cert. denied 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969); Hedgepeth v. United States, 125 U.S. App.D.C. 19, 365 F.2d 952 (1966); Hedgepeth v. United States, 124 U.S. App.D.C. 291, 294, 364 F.2d 684, 687 (1966); United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971); United States v. Dunn, 148 U.S.App.D. C. 91, 101, 459 F.2d 1115, 1125 (1972) ; cf. United States v. Aberson, 419 F.2d 820 (2 Cir.), cert. denied 397 U.S. 1066, 90 S.Ct. 1497, 25 L.Ed.2d 687 (1970) and United States v. Maxwell, 383 F.2d 437 (2 Cir. 1967), cert. denied 389 U.S. 1057, 88 S.Ct. 809, 19 L.Ed.2d 856 (1968). Here, in short, there was no undue delay in bringing the case to trial nor was prejudice established resulting from whatever delay had occurred. The trial court committed no error respecting the delay issue. IV Although we have found no error requiring reversal of this appellant’s convictions, we think counsel appointed by this court properly has expressed dissatisfaction concerning developments at the sentencing hearing. The Government itself does not “oppose a remand for re-sentencing” but suggests that further discussion may be obviated. The situation is not to be remedied that simply. (a) Por one thing, it seems clear enough that the sentencing judge had not adequately employed criteria which should attend upon the pronouncement of sentence. To illustrate, trial counsel, joined by the appellant at allocution, had urged leniency ostensibly on the theory that specific acts of affirmative participation by the appellant had not been shown. Such had been the tenor of the defense, indeed it came out that the appellant had told the probation officer, “I didn’t think I would be found guilty because I didn’t do anything.” Perhaps with a degree of pardonable exasperation, the sentencing judge commented : My chief" }, { "docid": "11889106", "title": "", "text": "463, 30 L.Ed.2d 468 (1971), they are the “major evils protected against by the speedy trial guarantee”; Inordinate delay between arrest, indictment and trial may inpair a defendant’s ability to present an effec tive defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family and his friends. These considerations were substantial under-pinnings for the decision in Klopfer v. North Carolina [386 U.S. 213, 87 S.Ct. 988, 18 L. Ed.2d 1] supra; see also Smith v. Hooey, 393 U.S. 374, 377-378, 89 S.Ct. 575, 576-577, 21 L.Ed.2d 607 (1969). See also Strunk v. United States, 412 U. S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). With respect to actual prejudice to the appellants’ ability to defend themselves, the record discloses that one eyewitness to the crime, a former codefendant, died before the case was eventually brought to trial. While it is true, as the Government argues, that the record does not indicate whether the testimony of this witness would have been helpful, or even available, to the appellants, we cannot gainsay that it would not have been. Certainly the death of a witness with firsthand knowledge of the events at issue creates the strong possibility of prejudice to a defendant. Further, there is positive evidence in this record that the memories of witnesses faded in the long hiatus between arrest and trial. Even the Government felt constrained to explain one of its own witnesses’ failing memory. Thus, we find the comment in the prosecutor’s closing argument: He didn’t remember all those details. He was wrong on some of them. He was wrong on the dates. ... He was relying on his" }, { "docid": "8596203", "title": "", "text": "has made no complaint. In addition, whatever pretrial prejudice resulted from personal anxiety and restraint on appellant’s liberty after his November 5, 1970 motion to dismiss for lack of a speedy trial, during which time he was in the work-release program, does not appear substantial from anything that appellant has suggested. Appellant relies primarily on cases decided by this court that suggest that when the delay in prosecution exceeds one year, prejudice is presumed and need not be affirmatively demonstrated. See, e. g., United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 257 (1969); Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684 (1966). We need not at this time decide to what extent these precedents remain viable after Barker. It is sufficient to note that this court has previously declared that “even' the prejudice which is presumed to inhere in all cases where the delay is particularly long must be weighed against the other considerations .” United States v. Bishton, 150 U.S.App.D.C. 51, 463 F.2d 887, 891 (1972). The Supreme Court in Barker indicated that the most serious form of prejudice is that which occurs when the de fense is impaired by the delay; for example, where defense witnesses are “unable to recall accurately events of the distant past.” 407 U.S. at 532. Of course, the loss of memory by witnesses over long periods of time will ordinarily be less prejudicial to the defendant than to the prosecution, which bears the burden of proof at the trial. Appellant argues that the amnesia, which he alleges developed after the crime and was caused in part by his incarceration, prejudiced his defense. However, we are not convinced that appellant’s defense was prejudiced materially by the delay for several reasons. In the first place, the record does not clearly demonstrate that appellant ever established the fact that he was actually suffering from amnesia. Indeed, implicit in the" }, { "docid": "8060510", "title": "", "text": "being out of the case. “The Court: They are not out. “Counsel: Well, as a practical matter, they do not follow the case up any further, and, if necessary, I would be glad to have [the appointed counsel] come in and say that he in fact did not make any effort to represent the man after doing what is normally thought to be the full extent of his duties. * * * ” At no point in the proceeding did the Government challenge this assertion. This court has spoken before of the inadequacy of post-preliminary hearing representation by court-appointed counsel, and we have no reason to doubt defense counsel’s characterization of the situation in the Court of General Sessions at that time. See Smith v. United States, 135 U.S.App.D.C. 284, 289, 418 F.2d 1120, 1125 (1969) (Wright, J., dissenting) ; Williams v. United States, 129 U.S.App.D.C. 332, 336, 394 F.2d 957, 961 (1968). Insofar as the court’s finding of waiver was based on the assumption that appellant acted upon, or with meaningful access to, the advice of counsel, it was in error. And, without counsel, we have no basis for assuming that appellant had either the ability or the information on which to make an intelligent and voluntary waiver of his right to a speedy trial. Furthermore, we think that by its failure to offer any explanation or justification for the delay, the Government has tacitly assumed full responsibility for it here. The Government rests its ease on appeal solely on the issue of possible prejudice to the accused. Its single position is that the evidence of guilt is so overwhelming as to negate any inference of prejudice to appellant in the preparation of his defense. See Harling v. United States, 130 U.S.App.D.C. 327, 330-331, 401 F.2d 392, 395-396 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969) (While a “slight showing of possible prejudice * * * might have entitled defendant to relief * * here there was not “even a wisp of prejudice.”); Taylor v. United States, 99 U.S.App.D.C. 183, 186, 238 F.2d 259," }, { "docid": "23410942", "title": "", "text": "case reflects no neglect, indifference, or lack of reasonable diligence on the part of the Government. Turning then to appellant’s claim of prejudice, we note that (1) at all times he was free on bond, (2) he has never claimed the unavailability of any witness as a result of the delay, (3) his preparation for the first trial in 1969 diminished the likelihood that his ability or the ability of his witnesses to recall the critical facts had irreparably faded, and (4) the case against him, in light of his remarks to the arresting officers, was strong. We have intimated that when the delay in prosecution exceeds twelve months, prejudice to the defendant is presumed and need not be affirmatively shown. See United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 256 (1971); Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969). But even the prejudice which is presumed to inhere in all cases where the delay is particularly long must be weighed against the other considerations we have mentioned. If this were a case where the delays could not be explained or justified by the Government, or where the defendant’s ability to present a defense was demonstrably affected, or where the Government’s case on the merits was close, then the balance between the interest of the public and the protection of the individual might be different. Here, however, the balance is otherwise. The remaining claims of error are without merit. Appellant first argues that the second count of the federal indictment, charging him with receiving a bribe, fails to state a crime under 18 U.S.C. § 201(g) because, in his submission, that section only prohibits receiving money for actions which are currently or may in the future be pending before a public official, and does not apply to acts already completed. Although his precise line of reasoning is difficult to follow, we have no doubt that Congress intended to reach demands for and acceptances" }, { "docid": "8596204", "title": "", "text": "in all cases where the delay is particularly long must be weighed against the other considerations .” United States v. Bishton, 150 U.S.App.D.C. 51, 463 F.2d 887, 891 (1972). The Supreme Court in Barker indicated that the most serious form of prejudice is that which occurs when the de fense is impaired by the delay; for example, where defense witnesses are “unable to recall accurately events of the distant past.” 407 U.S. at 532. Of course, the loss of memory by witnesses over long periods of time will ordinarily be less prejudicial to the defendant than to the prosecution, which bears the burden of proof at the trial. Appellant argues that the amnesia, which he alleges developed after the crime and was caused in part by his incarceration, prejudiced his defense. However, we are not convinced that appellant’s defense was prejudiced materially by the delay for several reasons. In the first place, the record does not clearly demonstrate that appellant ever established the fact that he was actually suffering from amnesia. Indeed, implicit in the judicial determination that appellant was competent to stand trial is the finding that either no amnesia existed or, alternatively, that if amnesia existed it was not so severe as to preclude appellant from properly assisting in his own defense. Moreover, to the extent that any amnesia occurred prior to the delays, or from causes independent of delay, there is no justification for charging the resulting prejudice to the government. And apart from his assertion of amnesia affecting him, appellant does not claim his defense was impaired by the death, unavailability, or loss of memory of any other actual or potential witness. Upon a careful consideration of all of the factors discussed above, we conclude that appellant was not denied his constitutional right to a speedy trial. Despite the long delay between arrest and trial, we decline to strike the balance against the governmnt under eircumstances where a major portion of the delay was caused by appellant’s own tactical maneuvering, where no intentionally dilatory practices can be ascribed to the government, where no demand for a" }, { "docid": "22952936", "title": "", "text": "Supreme Court has held that, when the evidence introduced indicates that destroyed notes taken by investigating officials were informal or “rough,” they cannot be considered “substantially verbatim” statements within the meaning of the Act. See United States v. Augenblick, 393 U.S. 348, 354-355, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) . E. The Fairness of the Trial. 1. Speedy Trial Issue. Both appellants complain that the delay of this case for a period of seventeen and one-half months between the time of arrest and the time of trial violated their Sixth Amendment right to a speedy trial. The court has been of the view that any delay which exceeds a period of one year between arrest and trial raises a speedy trial claim of prima facie merit. See, e. g., Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392, 395 (1968); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 293, 364 F. 2d 684, 686 (1966). In examining delays which exceed this period, “the length of the delay; reasons for the delay; diligence of the prosecutor, court and defense counsel; and reasonable possibility of the prejudice from delay” are indicia which have been utilized in order to determine the merit of this claim. Hedgepeth v. United States, 125 U.S. App.D.C. 19, 21, 365 F.2d 952, 954 (1966). See also Dickey v. Florida, 398 U.S. 30, 48, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring). Appellant Hines argues that the Government needlessly delayed the suppression hearing for five months. As support for this contention, he points out that all motions which were relevant to the hearing were filed by the middle of April, 1968, and that, while he was prepared for the suppression hearing at that time, the Government had sought and gained a continuance on April 26, 1968, and the hearing was delayed until September 20, 1968. However, our examination of the docket reveals that the relationship between the continuance and the five month delay is slight. The Government, with appellants’ consent, was granted a three week delay on April 26. On May 17, 1968, when the continuance" }, { "docid": "941194", "title": "", "text": "by that time had exhausted “the system of safeguards designed to protect the accused.” Blunt v. United States, 131 U.S.App.D.C. 306, 310, 404 F.2d 1283, 1287 (1968), cert. denied 394 U.S. 909, 89 S.Ct. 1021, 21 L.Ed.2d 221 (1969); and see generally, Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (en banc, 1968), cert. denied 394 U.S. 964, 89 S.Ct. 1318, 22 L. Ed.2d 567 (1969). The Government here had sought no continuance, there was no suggestion of oppressive conduct on its part, whatever delay may have occurred was not shown to be purposeful on the part of the prosecution, and particularly, the appellant developed no evidence that his defense in any manner had been prejudiced. In such respects the Court has emphasized for us governing criteria in United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Yet other recent cases in our court have discussed principles applicable here. See, e. g., United States v. McCray, 140 U.S. App.D.C. 67, 433 F.2d 1173 (1970); Hinton v. United States, 137 U.S.App. D.C. 388, 424 F.2d 876 (1969) ; Bynum v. United States, 133 U.S.App.D.C. 4, 6, 408 F.2d 1207, 1209 (1968), cert. denied 394 U.S. 935, 89 S.Ct. 1211, 22 L.Ed.2d 466 (1969); cf. Harling v. United States, 130 U.S.App.D.C. 327, 330, 401 F.2d 392 (1968), cert. denied 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969); Hedgepeth v. United States, 125 U.S. App.D.C. 19, 365 F.2d 952 (1966); Hedgepeth v. United States, 124 U.S. App.D.C. 291, 294, 364 F.2d 684, 687 (1966); United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971); United States v. Dunn, 148 U.S.App.D. C. 91, 101, 459 F.2d 1115, 1125 (1972) ; cf. United States v. Aberson, 419 F.2d 820 (2 Cir.), cert. denied 397 U.S. 1066, 90 S.Ct. 1497, 25 L.Ed.2d 687 (1970) and United States v. Maxwell, 383 F.2d 437 (2 Cir. 1967), cert. denied 389 U.S. 1057, 88 S.Ct. 809, 19 L.Ed.2d 856 (1968). Here, in short, there was no undue delay in bringing the case to trial nor was prejudice established" } ]

[ { "docid": "21363906", "title": "", "text": "PER CURIAM. The appellant unsuccessfully sought an injunction against the practice of racial discrimination in the barber shops at Lorton Reformatory. The District Court found “that colored inmates are taken to the barber shop staffed by colored barbers and that white inmates are taken to the barber shop staffed by white barbers.” At the hearing of the appeal counsel for the appellee officials stated in their behalf that they had made plans for consolidated and more adequate barber shop facilities for the inmates, and that they intended in the new facilities to make no distinctions on the basis of race, but that each inmate, white or Negro, would have his regular turn, taking the next available chair whether manned by a white or Negro barber. The necessary appropriation for the new facilities has been requested by these officials. Under the findings of the District Court the injunction prayed should be granted. In a series of decisions since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the unconstitutionality of racial classifications under various circumstances has been adjudicated. “[I]t is no longer open to question that a State may not constitutionally require segregation of public facilities.” Johnson v. Virginia, 373 U.S. 61, 62, 83 S.Ct. 1053, 1054, 10 L.Ed.2d 195 (1963). “The sufficiency of Negro facilities is beside the point; it is the segregation by race that is unconstitutional.” Watson v. Memphis, 373 U.S. 526, 538, 83 S.Ct. 1314, 1321, 10 L.Ed.2d 529 (1963). “[I]t would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 695, 98 L.Ed. 884 (1954). While it is not explicitly claimed that desegregation could not be effected in the existing facilities, we think it reasonable in the circumstances to postpone the effectiveness of the injunction until August 1, 1964, by which time the new facilities are expected to become available. Reversed and remanded for the entry of an appropriate decree consistent with the views herein expressed." } ]

[ { "docid": "22938420", "title": "", "text": "living in racially integrated cells. There is, however, no evidence indicating the number of prisoners who insisted upon transfer ring to racially segregated cells. It does not appear that defendants adopted a program of reassigning prisoners placed in segregated cells prior to 1966, and continuing therein. The record is uninformative about prison practices with respect to assignment and transfer subsequent to 1968. Mr. Shea indicated that because of an incident within the prison at the time that Dr. Martin Luther King died, the authorities became more reluctant to interfere with prisoners’ choices of cellmates. There is no testimony as to whether the policy at the time of trial was to ignore race in assigning incoming inmates to cells or whether race was considered either with the objective of maintaining racially segregated or racially balanced cells. Transfer policies are not clearly revealed. In Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), the Supreme Court affirmed the order of a three judge district court declaring that Alabama statutes requiring racial segregation in prisons are unconstitutional and establishing a schedule for desegregation. In Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972), the Court cited Lee for the principle that “racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for ‘the necessities of prison security and discipline.’ ” See also, United States v. Wyandotte County, Kansas, 480 F.2d 969 (10th Cir. 1973). Assuming (although we have noted that it is not clear) that recent policy has not tended to produce racial segregation, there would remain a question of the extent of the duty of defendants to remedy segregation which is a residue of pre-1966 policy, if unlawful. In instances involving past de jure segregation in schools, the authorities have an affirmative obligation to dismantle the former system. See Swann v. Bd. of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1970), reh. denied 403 U.S. 912, 91 S.Ct. 2200, 29 L.Ed.2d 689; Green v. New Kent County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d" }, { "docid": "21986192", "title": "", "text": "or operated by the State. ‘[I]t is no longer open to ques tion that a State may not constitutionally require segregation of public facilities.’ Johnson v. Virginia, 1963, 373 U.S. 61, 62, 83 S.Ct. 1053, 1054, 10 L.Ed.2d 195.” The Alabama statutes requiring segregation by race in all state prison facilities including youth correctional centers were declared unconstitutional and immediate desegregation of reform schools was ordered in Washington v. Lee, M.D. Ala.1966, 263 F.Supp. 327, in an opinion termed “unexceptionable” by the Supreme Court in its affirmance. 1968, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212. In Wilson v. Kelly, N.D.Ga., 1968, 294 F.Supp. 1005, similar Georgia statutes requiring racial segregation in prison facilities were declared unconstitutional. The Maryland statute requiring racial segregation in state training schools was held violative of the Fourteenth Amendment in 1961 in State Board of Public Welfare v. Myers, 224 Md. 246, 167 A.2d 765, 767. And, were more authority needed, the Eighth Circuit Court of Appeals held in Board of Managers of the Arkansas Training School for Boys at Wrightsville v. George, 8 Cir. 1967, 377 F.2d 228, 231, that invocation of a three judge court was not required to declare that the Arkansas statutes requiring racial segregation in the state’s juvenile training schools were unconstitutional, saying: “Section 2281 requiring a three-judge court is not mandatory where the statute invokes clear governmental discrimination. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. Segregation of public institutions or facilities is no longer a substantial constitutional question. United States v. Guest, 383 U.S. 745, see n. 6 at 754, 86 S.Ct. 1170, 16 L.Ed.2d 239; Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195.” There being no substantial constitutional question, the three judge statutory court is hereby dissolved with the case returned to Judge Alvin B. Rubin, from whom the matter initiated, for further disposition. . LSA-R.S. 15.911, 15:912, 15:972, 15:1011, 15:1012, 15:1031, 15:1032." }, { "docid": "22919268", "title": "", "text": "immediately. All facilities in the minimum and medium security institutions, including Draper Correctional Center and Julia Tutwiler Prison for Women, must be completely desegregated within six months. As to the maximum security institutions, such as Kilby Prison and Atmore Prison, the evidence reflects that considerations of security and discipline require a more gradual desegregation. In this connection, the Court will expect complete and total desegregation of all state penal facilities, including the maximum security institutions, within a period of one year. As to the county and city systems, complete desegregation should be achieved within six months in all areas, including quarters, except in very exceptional instances as, for example, in the use of the “tank” mentioned previously. No plan of desegregation will be required of any of these defendants. However, since it is the function and duty of the Board of Corrections for the State of Alabama, and particularly the Commissioner thereof, pursuant to Code of Ala., Tit. 45, §§ 3, 7, 10(1), 10(5), 10(8) and 11, to inspect and generally supervise every county and municipal jail or prison in any incorporated town and city in the State of Alabama having ten thousand or more population, this Court will require the Commissioner of the Board of Corrections to supervise not only the desegregation of state penal facilities as herein ordered, but also the desegregation of the jails in the counties throughout the State of Alabama and in all towns and cities throughout the state. The Commissioner of the Board of Corrections will be required to report to this Court every three months beginning March 15, 1967, concerning the steps being taken and the progress being made in the state penal institutions and the county and city jails, and other penal facilities throughout the State of Alabama. In view of the declarations herein made concerning the unconstitution ality of the state statutes in question to the extent that those statutes require segregation of the races solely by reason of their color, and with the further declarations as to the unconstitutionality of the practice of segregating prisoners in any of the state," }, { "docid": "22919270", "title": "", "text": "county or city penal facilities solely by reason of race, and the declarations concerning the duty of appropriate officials to take the necessary steps within the periods herein indicated, this Court does not consider it necessary to issue a formal injunction in this case at this particular time. However, there should be no misunderstanding on the part of any of the officials involved concerning the duty imposed upon them by the law generally and by this order specifically to cease the practice of arbitrarily segregating the races in the state, county and city penal facilities. The officials of the State of Alabama, whether they be concerned with the state penal facilities or the county and city penal facilities, have an affirmative duty and responsibility to effect desegregation of these facilities in accordance with this decree. Jurisdiction of the case will be specifically retained for all purposes. It is, therefore, the order, judgment and decree of this Court that §§ 4, 52, 121, 122, 123, 172 and 183 of Title 45, Code of Alabama, Recompiled 1958, be and are, in each instance, declared violative of the Fourteenth Amendment to the Constitution of the United States to the extent that said statutes require segregation of the races in the prisons and jails of Alabama. It is further ordered that the defendant Frank Lee as Commissioner of the Board of Corrections for the State of Alabama, his successors in office, agents, servants and employees, take the necessary and appropriate steps to desegregate immediately the several honor farms, the educational programs, the youth centers and the hospitals in the state penal system; that said officials take the necessary and appropriate steps to effect complete desegregation of the minimum and medium security institutions, as operated by the state penal system, within six months from the date of this decree; that said officials take the necessary and appropriate steps to effect complete desegregation of all other state penal facilities, including the maximum- security institutions, within a period of one year from the date of this decree. It is further ordered that the defendant A. Melvin Bailey" }, { "docid": "21986191", "title": "", "text": "PER CURIAM: In this class action, plaintiff asks the court to desegregate the Louisiana state youth correctional institutions and to declare the state statutes that require racial segregration at these institutions unconstitutional. Plaintiff originally sought the appointment of a three judge district court under 28 U.S.C. § 2281, but soon thereafter moved for its dissolution on the ground that the case presented no substantial constitutional question. Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. In Singleton v. Board of Commissioners of State Institutions, 5 Cir. 1966, 356 F.2d 771, a case in which the court was considering a suit to desegregate the Florida state reform schools, the Fifth Circuit Court of Appeals said: “Twelve years ago, in Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the Supreme Court effectively foreclosed the question of whether a State may maintain racially segregated schools. The principle extends to all institutions controlled or operated by the State. ‘[I]t is no longer open to ques tion that a State may not constitutionally require segregation of public facilities.’ Johnson v. Virginia, 1963, 373 U.S. 61, 62, 83 S.Ct. 1053, 1054, 10 L.Ed.2d 195.” The Alabama statutes requiring segregation by race in all state prison facilities including youth correctional centers were declared unconstitutional and immediate desegregation of reform schools was ordered in Washington v. Lee, M.D. Ala.1966, 263 F.Supp. 327, in an opinion termed “unexceptionable” by the Supreme Court in its affirmance. 1968, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212. In Wilson v. Kelly, N.D.Ga., 1968, 294 F.Supp. 1005, similar Georgia statutes requiring racial segregation in prison facilities were declared unconstitutional. The Maryland statute requiring racial segregation in state training schools was held violative of the Fourteenth Amendment in 1961 in State Board of Public Welfare v. Myers, 224 Md. 246, 167 A.2d 765, 767. And, were more authority needed, the Eighth Circuit Court of Appeals held in Board of Managers of the Arkansas Training School for Boys" }, { "docid": "7847405", "title": "", "text": "FINAL ORDER SINGLETON, District Judge. Plaintiffs have brought this class action under Fed.R.Civ.P. 23 on behalf of all prisoners similarly situated under the custodianship of the Harris County Sheriff. This cause is filed under the jurisdiction of 42 U.S.C. §§ 1981 and 1983 and 28 U.S.C. §§ 1343, 2201, and 2202. Plaintiffs are challenging certain customs and policies that have been developed and followed by the Harris County Sheriff’s department as violative of their civil rights. The Texas Legislature has provided for the establishment of county jails in Vernon’s Tex.Rev.Civ. Stat.Ann. art. 5115 (1957). Said article does provide for segregation of prisoners by sex and age but not by race. Accordingly, this statute is in no way in question here or under attack. This § 1983 action is based upon the custom or usage of policies regarding racial segregation and censorship of the mails at the defendant institutions. Plaintiffs are Negro inmates incarcerated at the Harris County Rehabilitation Center; one plaintiff, Allen B. Lamar, is no longer incarcerated there, but the class is properly represented by the remaining plaintiffs who appeared in court at the comprehensive hearing in this cause. Washington v. Lee, 263 F.Supp. 327 (N.D.Ala.1966), aff’d 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). The first allegation raises the issue of racial segregation in the county jail system. After hearing evidence on the method whereby prisoners are placed in cells at the Rehabilitation Center, this court finds that the system whereby one wing (3-D) of the unit consistently is filled with black inmates only is not a color-blind system and, therefore, violates the Equal Protection Clause of the Fourteenth Amendment. This court agrees with the Washington v. Lee, supra,, 263 F.Supp. at 331, court when it wrote: “We recognize that there is merit in the contention that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period. However, recognition of such instances does nothing to bolster the statutes or the general practice that requires- or permits prison or jail officials to separate the races arbitrarily. Such statutes and practices" }, { "docid": "22919266", "title": "", "text": "practice that requires or permits prison or jail officials to separate the races arbitrarily. Such statutes and practices must be de dared unconstitutional in light of the clear principles controlling. Plaintiffs’ contention that the separation of prisoners solely on the basis of race constitutes a violation of the “Cruel and Unusual” Punishment Clause of the Eighth Amendment to the Constitution of the United States is plainly without merit. There is no question but that, through the action of the Fourteenth Amendment, the Eighth applies to the states, Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). However, the Cruel and Unusual Punishment Clause of the Eighth Amendment was adopted to prevent inhuman, barbarous or torturous punishment, Black v. United States, 269 F.2d 38 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960); Hemans v. United States, 163 F.2d 228 (6th Cir.), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380 (1947); and segregation of individuals, while incarcerated, solely by reason of their race does not, in the opinion of this Court, constitute cruel and unusual punishment. IV. The operation of penal institutions, whether it be on a state-wide or local level, is a highly specialized endeavor, and he sober judgment of experienced correctional personnel, such as Frank Lee as Commissioner of the Board of Corrections for the State of Alabama and A. Melvin Bailey as sheriff of Jefferson County, Alabama, deserves the most careful consideration of this Court. In this connection, it is recognized that “[t]he association between men in correctional institutions is closer and more fraught with physical danger and psychological pressures than is almost any other kind of association between human beings,” Edwards v. Sard, 250 F.Supp. 977 (D.C. Dist. 1966), and in light of this recognition this Court will not at this time require an immediate and total desegregation of state, county and city penal facilities in the State of Alabama. However, the several honor farms, the educational programs, the youth centers and the hospitals in the state system must be completely desegregated" }, { "docid": "22919265", "title": "", "text": "the Due Process and Equal Protection Clauses of the Fourteenth Amendment follow them into prison and protect them there from unconstitutional action on the part of prison authorities carried out under color of state law. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1965); Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961); Pierce v. La Vallee, 293 F.2d 233 (2d Cir. 1961), and Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 295 F.2d 171 (1961). In this regard, this Court can conceive of no consideration of prison security or discipline which will sustain the constitutionality of state statutes that on their face require complete and permanent segregation of the races in all the Alabama penal facilities. We recognize that there is merit in the contention that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period. However, recognition of such instances does nothing to bolster the statutes or the general practice that requires or permits prison or jail officials to separate the races arbitrarily. Such statutes and practices must be de dared unconstitutional in light of the clear principles controlling. Plaintiffs’ contention that the separation of prisoners solely on the basis of race constitutes a violation of the “Cruel and Unusual” Punishment Clause of the Eighth Amendment to the Constitution of the United States is plainly without merit. There is no question but that, through the action of the Fourteenth Amendment, the Eighth applies to the states, Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). However, the Cruel and Unusual Punishment Clause of the Eighth Amendment was adopted to prevent inhuman, barbarous or torturous punishment, Black v. United States, 269 F.2d 38 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960); Hemans v. United States, 163 F.2d 228 (6th Cir.), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380 (1947); and segregation of individuals, while incarcerated, solely by reason of" }, { "docid": "7847406", "title": "", "text": "by the remaining plaintiffs who appeared in court at the comprehensive hearing in this cause. Washington v. Lee, 263 F.Supp. 327 (N.D.Ala.1966), aff’d 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). The first allegation raises the issue of racial segregation in the county jail system. After hearing evidence on the method whereby prisoners are placed in cells at the Rehabilitation Center, this court finds that the system whereby one wing (3-D) of the unit consistently is filled with black inmates only is not a color-blind system and, therefore, violates the Equal Protection Clause of the Fourteenth Amendment. This court agrees with the Washington v. Lee, supra,, 263 F.Supp. at 331, court when it wrote: “We recognize that there is merit in the contention that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period. However, recognition of such instances does nothing to bolster the statutes or the general practice that requires- or permits prison or jail officials to separate the races arbitrarily. Such statutes and practices must be declared unconstitutional in light of the clear principles controlling.” The practice of segregating the prisoners by race must be immediately halted and only practices that implement in desegregation of the races will be permitted. See McClelland v. Sigler, 327 F.Supp. 829 (D.Neb.1971). Plaintiffs have also alleged that the defendants are practicing a policy of mail censorship with regard to all mail to and from the county jails. In an attempt to establish what the jail rules were at the prison, a set of correspondence rules for the Rehabilitation Center effective July 7, 1972, was introduced at the hearing. (See Appendix I). However, the jail officials testified on the stand that these rules were no longer being followed at the jail. Instead, a set of oral regulations was being given to the prison employees. Exactly what the prison employees were being instructed to do was never clearly established. What was established, as a matter of fact, is that the defendants are censoring, or withholding, mail to and from courts and attorneys, as well as" }, { "docid": "22866702", "title": "", "text": "(“The CDC devotes 75 intelligence staff to gathering and verifying inmate-related information,” both in prisons and on the streets). In short, applying the policy to transfers is not “arbitrary or irrational,” requiring that we set aside the considered contrary judgment of prison administrators. Turner, supra, at 89-90. Ill The majority claims that strict scrutiny is the applicable standard of review based on this Court’s precedents and its general skepticism of racial classifications. It is wrong on both scores. A Only once before, in Lee v. Washington, 390 U. S. 333 (1968) (per curiam), has this Court considered the constitu tionality of racial classifications in prisons. The majority claims that Lee applied “a heightened standard of review.” Ante, at 506. But Lee did not address the applicable standard of review. And even if it bore on the standard of review, Lee would support the State here. In Lee, a three-judge District Court ordered Alabama to desegregate its prisons under Brown v. Board of Education, 347 U. S. 483 (1954). Washington v. Lee, 263 F. Supp. 327, 331-332 (MD Ala. 1966). In so doing, the District Court rejected any notion that “consideration^] of prison security or discipline” justified the “complete and permanent segregation of the races in all the Alabama penal facilities.” Id., at 331. However, the District Court noted “that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period.” Ibid, (footnote omitted). It provided only one example — “the ‘tank’ used in . . . large municipal jails where intoxicated persons are placed upon their initial incarceration and kept until they become sober,” id., at 331, n. 6 — and the court left unmentioned why it would have-been necessary to separate drunk whites from blacks on a Birmingham Saturday night. This Court, in a per curiam, one-paragraph opinion, affirmed the District Court’s order. It found “unexceptionable” not only the District Court’s general rule that wholesale segregation of penal facilities was unconstitutional, but also the District Court’s “allowance for the necessities of prison security and discipline.” Lee, 390 U. S., at 334. Indeed, Justices" }, { "docid": "22919260", "title": "", "text": "to imprisonment in these locations. Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201. Under the circumstances reflected by the evidence in this case, all that it is necessary for the plaintiffs to show on this particular point, in order to challenge the statutes and practices concerning segregation of the races in the penal facilities in the Birmingham City Jail and the Jefferson County Jail is that the operation of these institutions, as that operation presently exists, “permit[s] the recurrence of comparable violations.” Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302. In this regard, the Supreme Court of the United States in Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, observed that the rule against relying on the constitutional rights of another (who may be in this case presently imprisoned in either the penal facility of the City of Birmingham or of Jefferson County), is not part of the constitutional requirement of standing, but is a rule of self-restraint which the court has developed for its own governance, and, for that reason, is a mere rule of practice not to be applied where it would be difficult, if not impossible, for the persons whose rights are asserted to present their grievance to a court of competent jurisdiction. See also Ferguson v. Buchanan, No. 64-107-CIV-CF, So. Dist. Fla., March 12, 1965, where the criminal prosecution against the plaintiff, who was seeking to enjoin the sheriff of Dade County, Florida, from maintaining segregated facilities in the jails of Dade County, was nol prossed before the case was submitted to the district court. That court, nevertheless, found the Florida statutes that required segregation in county jails on the basis of race unconstitutional, and enjoined the defendants from operating or maintaining jails in a manner requiring segregation of the races. For these reasons, it is evident that the contention on the part of defendants Austin and Bailey that these plaintiffs do not have standing to challenge the statutes and practices requiring segregation of the races in the penal facilities of the" }, { "docid": "22919258", "title": "", "text": "Title 45, § 115, Code of Alabama, Recompiled 1958. The defendant Robert K. Austin is warden of the City Jail of Birmingham, Alabama, and in this capacity has the custodial duty and authority over prisoners in that jail. The defendants Bailey and Austin are sued individually and as representatives of all county sheriffs of Alabama and of all wardens and jailers of the city and town jails of Alabama. I. As noted in the complaint filed with the Clerk of this Court on February 18, 1966, plaintiffs Williams and Houck allege that they were then incarcerated in the City Jail of Birmingham, Alabama. It now appears, however, that the charges against Houck have been nol prossed and that Williams has entered a plea of guilty to the charges against him and has paid the fine imposed upon said plea. For these reasons, the defendants Austin and Bailey contend that plaintiffs have no standing to challenge any of the statutes or practices requiring segregation or relating to the segregation by race of the penal facilities of the City of Birmingham or Jefferson County. In Singleton v. Board of Commissioners, 356 F.2d 771 (5th Cir. 1966), this same issue was raised in that the plaintiff had completed the actual service of his sentence. In Singleton, the Court set forth the general principle applicable in such instances: The general standing requirement in cases involving governmental segregation is that the plaintiffs must show past use of the facilities, where feasible, and a right to, or a reasonable possibility of future use. There is no question but that the evidence in this case reflects a “past use” of the penal facilities of the City of Birmingham and Jefferson County by some of these plaintiffs. As to that part of the general rule stated in Singleton concerning the “reasonable possibility of future use,” this Court does not conceive that it is necessary that plaintiffs show an intention to violate the laws of the State of Alabama or the City of Birmingham in such a manner that would subject one or more of them in the future" }, { "docid": "22809929", "title": "", "text": "changes in Parchman’s facilities and administrative practices must be effectuated in order to meet constitutional standards, and, then, secondly, to determine whether fund shortage may require a modification of the district court’s judgment regarding these matters. Each component of the district court’s judgment regarding these matters will be individually examined. It should be repeated that none of the district court’s findings of fact is disputed by the appellants. We simply adopt those findings throughout our discussion. The severest criticisms that follow are in the words of the trial court. A. Elimination of Racial Segregation and Discrimination: The practice at Parchman has been and is to maintain a system of prison facilities segregated by race through which black inmates are subjected to disparate and unequal treatment. Blacks are housed in more crowded quarters than whites, are assigned to different work details, are denied the same vocational training opportunities and are punished and disciplined more severely than whites for the same offense. Undoubtedly the appellants’ policy of segregating inmates in housing facilities, unrelated to prison security and discipline, is in violation of the equal protection clause of the Fourteenth Amendment. We need not labor the point that a State may not constitutionally require segregation of public facilities, Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963), and the principle is as applicable to jails as to other public facilities. Lee v. Washington, 263 F.Supp. 327 (M.D.Ala.1966), aff’d., 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); United States v. Wyandotte County, Kansas, 480 F.2d 969 (10th Cir. 1973). As reiterated by the Supreme Court in Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1971) ; “ . . . racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for ‘the necessities of prison security and discipline.’ Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L. Ed.2d 1212.” For other cases in which this principle has been applied to the administration of correctional institutions, see, e. g., Owens v. Brierley, 452 F.2d 640 (3rd Cir." }, { "docid": "3266108", "title": "", "text": "houses whites is approximately one third to one half white-populated. Defendant contends that such racial “balancing” is necessary because “[sjerious security difficulties might arise and in the past have arisen where a small white inmate population was evenly distributed among the total inmate population.” Moreover, defendant points out that the “black only” facilities are equal to the integrated facilities. The law is clear that “racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for the ‘necessities of prison security and discipline.’ ” Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (quoting Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968)). The “necessity” concept is narrow. “[Pjrison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails.” Lee v. Washington, 390 U.S. at 334, 88 S.Ct. at 995 (Black, Harlan, and Stewart, JJ., concurring) (Emphasis added). A generalized expectation of racial violence is insufficient. Singleton v. Board of Commissioners, 356 F.2d 771 (5th Cir. 1976); United States v. Wyandotte Co., 480 F.2d 969 (10th Cir. 1973). As the Supreme Court stated in Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149 (1917), It is urged that this proposed segregation will promote the public peace by preventing race conflicts. As desirable as this is, and important as is the preservation of public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution. Accord, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). In Washington v. Lee, 263 F.Supp. 327, 331 (M.D.Ala.1966), aff’d sub nom. Lee v. Washington, supra, a three judge panel declared: [I]n some isolated instances prison security and discipline necessitates segregation of the races for a limited period. However, recognition of such instances does nothing to bolster the . . . general practice [of separating the races]. (Emphasis added.) Defendant here candidly admits that the “need” to" }, { "docid": "22919269", "title": "", "text": "municipal jail or prison in any incorporated town and city in the State of Alabama having ten thousand or more population, this Court will require the Commissioner of the Board of Corrections to supervise not only the desegregation of state penal facilities as herein ordered, but also the desegregation of the jails in the counties throughout the State of Alabama and in all towns and cities throughout the state. The Commissioner of the Board of Corrections will be required to report to this Court every three months beginning March 15, 1967, concerning the steps being taken and the progress being made in the state penal institutions and the county and city jails, and other penal facilities throughout the State of Alabama. In view of the declarations herein made concerning the unconstitution ality of the state statutes in question to the extent that those statutes require segregation of the races solely by reason of their color, and with the further declarations as to the unconstitutionality of the practice of segregating prisoners in any of the state, county or city penal facilities solely by reason of race, and the declarations concerning the duty of appropriate officials to take the necessary steps within the periods herein indicated, this Court does not consider it necessary to issue a formal injunction in this case at this particular time. However, there should be no misunderstanding on the part of any of the officials involved concerning the duty imposed upon them by the law generally and by this order specifically to cease the practice of arbitrarily segregating the races in the state, county and city penal facilities. The officials of the State of Alabama, whether they be concerned with the state penal facilities or the county and city penal facilities, have an affirmative duty and responsibility to effect desegregation of these facilities in accordance with this decree. Jurisdiction of the case will be specifically retained for all purposes. It is, therefore, the order, judgment and decree of this Court that §§ 4, 52, 121, 122, 123, 172 and 183 of Title 45, Code of Alabama, Recompiled 1958," }, { "docid": "22866703", "title": "", "text": "331-332 (MD Ala. 1966). In so doing, the District Court rejected any notion that “consideration^] of prison security or discipline” justified the “complete and permanent segregation of the races in all the Alabama penal facilities.” Id., at 331. However, the District Court noted “that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period.” Ibid, (footnote omitted). It provided only one example — “the ‘tank’ used in . . . large municipal jails where intoxicated persons are placed upon their initial incarceration and kept until they become sober,” id., at 331, n. 6 — and the court left unmentioned why it would have-been necessary to separate drunk whites from blacks on a Birmingham Saturday night. This Court, in a per curiam, one-paragraph opinion, affirmed the District Court’s order. It found “unexceptionable” not only the District Court’s general rule that wholesale segregation of penal facilities was unconstitutional, but also the District Court’s “allowance for the necessities of prison security and discipline.” Lee, 390 U. S., at 334. Indeed, Justices Black, Harlan, and Stewart concurred “to make explicit something that is left to be gathered only by implication from the Court’s opinion. This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails.” Ibid. Those Justices were “unwilling to assume” that such an “explicit pronouncement [would] evinc[e] any dilution of this Court’s firm commitment to the Fourteenth Amendment’s prohibition of racial discrimination.” Ibid. Lee said nothing about the applicable standard of review, for there was no need. Surely Alabama’s wholesale segregation of its prisons was unconstitutional even under the more deferential standard of review, that applies within prisons. This Court’s brief, per curiam opinion in Lee simply cannot bear the weight or interpretation the majority places on it. See U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 24 (1994) (noting “our customary skepticism toward per curiam dispositions that lack the reasoned consideration of a full opinion”); Edelman v." }, { "docid": "22919256", "title": "", "text": "JOHNSON, District Judge: ORDER This is an action for declaratory and injunctive relief instituted by one white and five Negro citizens on their own behalf and on behalf of other persons similarly situated, pursuant to Rule 23(a) (3) of the Federal Rules of Civil Procedure. The plaintiffs seek a declaration concerning the rights of Negro citizens, male and female, not to be segregated, classified, designated, or otherwise subjected to racial distinctions in confinement in the state penal system and in the county, city and town jails of the State of Alabama. Further, plaintiffs assert that various statutes enacted by the Legislature of the State of Alabama, requiring segregation by race in the state, county and city penal facilities, are unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment to the Constitution of the United States. Plaintiffs ask that said statutes be declared unconstitutional and that the defendants be enjoined from requiring segregation by race in any of the state, county and city penal institutions in the State of Alabama. Of the Negro plaintiffs, Caliph Washington is confined in the Jefferson County Jail, Jefferson County, Alabama, awaiting retrial on a capital charge; Johnnie Coleman, Willie Allen and Cecil McCargo, Jr., are confined in state penal institutions, and prior to their present incarceration had been confined under racially segregated circumstances in either city, town or county jails in Alabama; and Hosea L. Williams and Thomas E. Houck, Jr., were incarcerated in the Birmingham City Jail at the time this case was instituted. The defendant Frank Lee is Commissioner of the Board of Corrections of the State of Alabama and as such is invested with the authority and charged with the duty of serving as the chief administrative officer of the Alabama Board of Corrections. Title 45, § 10(5), Code of Alabama, Recompiled 1958. The defendant A. Melvin Bailey is the duly elected and qualified sheriff of Jefferson County, Alabama, and as such has the legal custody and charge of the Jefferson County Jail and all prisoners committed thereto." }, { "docid": "3266109", "title": "", "text": "is insufficient. Singleton v. Board of Commissioners, 356 F.2d 771 (5th Cir. 1976); United States v. Wyandotte Co., 480 F.2d 969 (10th Cir. 1973). As the Supreme Court stated in Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149 (1917), It is urged that this proposed segregation will promote the public peace by preventing race conflicts. As desirable as this is, and important as is the preservation of public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution. Accord, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). In Washington v. Lee, 263 F.Supp. 327, 331 (M.D.Ala.1966), aff’d sub nom. Lee v. Washington, supra, a three judge panel declared: [I]n some isolated instances prison security and discipline necessitates segregation of the races for a limited period. However, recognition of such instances does nothing to bolster the . . . general practice [of separating the races]. (Emphasis added.) Defendant here candidly admits that the “need” to “balance” the races stems in large part from inadequate supervision of inmates caused by lack of sufficient guard personnel. The Court, at the invitation of the defendant, has toured the facilities in issue and has concluded that, indeed, the defendant is faced with a difficult, if not impossible, task of affording appropriate supervision over the inmate population. Defendant notes that he can assign only one guard per shift to each building. A building consists of three tiers of individual cells in the maximum security areas, housing 72 prisoners; and three large dormitory-type rooms, on separate floors, in the medium security areas, housing more than 100 prisoners. The lone guard in each building must often perform duties outside his assigned building during the shift, such as escorting an inmate from one area of the facility to another as may be required. Thus, it would appear that it is not an infrequent occurrence for there to be periods when 100 or more inmates have no immediate supervision. It is clear from both the' testimony adduced at trial" }, { "docid": "22919264", "title": "", "text": "L.Ed. 873 (1954), and the numerous cases implementing that decision, it is unmistakably clear that racial discrimination by governmental authorities in the use of public facilities cannot be tolerated. As stated by the Fifth Circuit in Singleton v. Board of Commissioners, supra: Twelve years ago, in Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the Supreme Court effectively foreclosed the question of whether a State may maintain racially segregated schools. The principle extends to all institutions controlled or operated by the State. “[I]t is no longer open to question that a State may not constitutionally require segregation of public facilities.” Johnson v. State of Virginia, 1963, 373 U.S. 61, 62, 83 S.Ct. 1053, 10 L.Ed.2d 195. 356 F.2d at 772. Although it is true that “ [1] awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system,” it is well established that prisoners do not lose all their constitutional rights and that the Due Process and Equal Protection Clauses of the Fourteenth Amendment follow them into prison and protect them there from unconstitutional action on the part of prison authorities carried out under color of state law. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1965); Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961); Pierce v. La Vallee, 293 F.2d 233 (2d Cir. 1961), and Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 295 F.2d 171 (1961). In this regard, this Court can conceive of no consideration of prison security or discipline which will sustain the constitutionality of state statutes that on their face require complete and permanent segregation of the races in all the Alabama penal facilities. We recognize that there is merit in the contention that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period. However, recognition of such instances does nothing to bolster the statutes or the general" }, { "docid": "22981576", "title": "", "text": "allowing such exercise freely to inmates of other religions, and the transfer of the prisoner because of his faith and for the purpose of suppressing and breaking up the Muslim religion in the prison, amounted to punishment not reasonably related to the prisoner’s infraction of the prison rule. The court condemned two other deprivations: (1) the denial of chapel facilities to Black Muslims as a violation of the regulations requiring public facilities to be made available to all persons without regard to race or religion and because the prison authorities encouraged and supported the holding of religious services in prison for other denominations, and (2) the confiscation and prohibition of Muslim religious medals as discrimination violating the Commissioner’s order prohibiting all discrimination on the basis of race or religion and also because the authorities sanctioned and even supplied such medals to prisoners of other faiths, while confiscating Muslims medals on the grounds they were “symbolic of the Muslim doctrine of hate and tend to create in the prison community race tension and disruptive influences.” See also Brown v. McGinnis, 10 N.Y.2d 531, 225 N.Y.S.2d 497, 180 N.E.2d 791 (1962). Two other recent cases give weight to petitioner Jackson’s cause. In Washington v. Lee, supra, a three-judge district court struck down racial segregation in Alabama state prisons, declaring that “Since Brown v. Board of Education [of Topeka,] 347 U.S. 483, [74 S.Ct. 686, 98 L.Ed. 875] (1954), and the numerous cases implementing that decision, it is unmistakably clear that racial discrimination by governmental authorities in the use of public facilities cannot be tolerated.” 263 F.Supp. 327, 331. The Court stated that it could conceive of no consideration of prison security or discipline which would sustain the constitutionality of state statutes that on their face required complete and permanent segregation. In Rivers v. Toyster, 360 F.2d 593 (Fourth Circuit, 1966) the district court had dismissed the prisoner’s petition for equitable relief without a plenary hearing on the ground that it set forth no justiciable issue because it dealt with the internal administration of the state prison system where the petitioner was lawfully" } ]

[ { "docid": "22206077", "title": "", "text": "trial in the United States’ Rule 59(e) motion. We review the denial of a Rule 59(e) motion only for abuse of discretion. Batterton v. Texas General Land Office, 783 F.2d 1220, 1225 (5th Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 316, 93 L.Ed.2d 289 (1986). Defenses not raised or argued at trial are ordinarily waived by the parties failing to raise them. Cunningham v. Healthco, Inc., 824 F.2d 1448, 1458 (5th Cir.1987). “Motions for a new trial or to alter or amend a judgment must clearly establish either a manifest error of law or fact or must present newly discovered evidence. These motions cannot be used to raise arguments which could, and should, have been made before the judgment issued. Moreover, they cannot be used to argue a case under a new legal theory.” Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986) (citations omitted). We therefore conclude that the United States’ argument that it is entitled to the Louisiana Medical Malpractice Act’s limitation on liability could, and should, have been made at some point before the entry of judgment. Because the government did not claim that it was entitled to the benefit of the limitation on damages until after the judgment was entered, we conclude that the government waived that defense, and hold that the trial court did not abuse its discretion in denying the government’s motion to alter or amend the judgment. IV For the foregoing reasons, the judgment of the district court, and its order denying the United States motion to alter or amend the judgment are AFFIRMED. . \"The Louisiana statutory scheme places a $100,000 maximum on the health care provider’s liability and provides a $400,000 supplemental amount available to each person payable from the state operated Patient’s Compensation Fund, thus limiting recovery to a total of $500,-000.\" Williams, 549 So.2d at 296. The Patient’s Compensation Fund is funded through annual surcharges levied on all qualified health care providers. La.Rev.Stat.Ann. 40:1299.44(A) (West 1977 & Suppl.1988). The Louisiana Supreme Court held that the $400,000 limitation on recovery from the Patient’s Compensation Fund did" } ]

[ { "docid": "5039626", "title": "", "text": "the decedent’s escape and avert a threat of harm to others. Deputy Glidden resorted to deadly force after his verbal commands and physical altercation did not subdue the decedent. Under the evidence in the record at the time of summary judgment, viewed in the light most favorable to the plaintiff, we conclude that the district court properly determined that the use of deadly force did not violate Chambers’ Fourth Amendment rights. Accordingly, we hold the district court properly granted qualified immunity to Deputy Glidden. B. Rule 59(e) Wells filed a Rule 59(e) motion based on newly discovered evidence. In her motion, Wells posits that the investigation was tainted from the beginning. She claims that there was a lack of fingerprint analysis, the gun found at the scene was planted, a cell phone found on the decedent’s body was planted at the scene of the burglary, and physical evidence contradicts Deputy Glidden’s statement that he shot the deceased while he was fleeing. In support of her claims, Wells attached over 50 exhibits. The district court reviewed the claims and denied the motion. To support a Rule 59(e) motion based on new evidence, “the movant must show either that the evidence is newly discovered or, if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.” Chery v. Bowman, 901 F.2d 1053, 1057 n.6 (11th Cir. 1990). This motion is not intended to “relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). We conclude from the record that the district court did not abuse its discretion in denying the motion. The district court addressed the three affidavits Wells submitted and found that none contained newly discovered evidence. One affidavit is from Wells, one is from the decedent’s cousin, and one is from the decedent’s sister, and all call into question whether Chambers was near the burglarized home at the time in question. However," }, { "docid": "20209054", "title": "", "text": "OPINION AND ORDER MELINDA HARMON, District Judge. Pending before the Court in the above referenced class action alleging unlawful reduction of pension benefits, grounded in the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461, are (1) Defendants United Way of the Texas Gulf Coast and United Way of the Texas Gulf Coast Cash Balance Plan’s (collectively, “United Way’s”) Rule 59 motion to alter or amend the judgment, or alternatively motion for reconsideration, or alternatively motion for new trial (instrument # 180) and (2) PlaintiffiClass Representative Ann W. Humphrey’s (“Plaintiffs” or “Humphrey’s”) Rule 54 motion (# 179) for common-fund costs and fees and additional costs and attorneys’ fees owed to Plaintiffs under ERISA § 502(g), 29 U.S.C. § 1132(g). United Way’s Rule 59 Motion The Court entered final summary judgment in favor of Plaintiffs on December 9, 2010 (# 171), triggering the fourteen-day period for filing a motion for costs and attorneys’ fees under Federal Rule of Civil Procedure 54(d). A Rule 59(e) motion “calls into question the correctness of a judgment.” Templet v. HydroChem, Inc., 367 F.3d 473, 478-79 (5th Cir.2004). “A motion to alter or amend the judgment under Rule 59(e) ‘must clearly establish either a manifest error of law or fact or must present newly discovered evidence’ and ‘cannot be used to raise arguments which could, and should, have been made before the judgment issued.’ ” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir.2003) Cquoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)). It also cannot be used to re-litigate issues “that simply have been resolved to the movant’s dissatisfaction.” In re Self, 172 F.Supp.2d 813, 816 (W.D.La.2001). Altering, amending or reconsidering a judgment is an extraordinary measure that should rarely be granted and only when there is (1) an intervening or change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice. Schiller v. Physicians Resource Group, Inc., 342 F.3d 563, 567 (5th Cir.2003). A court has considerable" }, { "docid": "23441157", "title": "", "text": "grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.” In re Kellogg, 197 F.3d 1116, 1119 (11th Cir.1999). “[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005). 500 F.3d 1335, 1343 (11th Cir.2007) (per curiam) (alterations in original). Having read Jacobs’s motion, we conclude that it did nothing but ask the district court to reexamine an unfavorable ruling. Reconsidering the merits of a judgment, absent a manifest error of law or fact, is not the purpose of Rule 59. We find nothing in the district court’s order that would constitute a manifest error of law or fact. Jacobs’s remedy, if he thought the district court ruling was wrong, was to appeal, a step he has taken. Since we have concluded that the court did not err in dismissing Jacobs’s complaint, it necessarily follows that it did not abuse its discretion in denying Rule 59(e) relief. B. Jacobs based his alternative motion, which called for vacating the judgment and entering an order of dismissal with leave to amend the complaint, on the provisions of Federal Rule of Civil Procedure 15(a). He first seized upon Rule 15(a)(1), which states that “[a] party may amend its pleading once as a matter of course ... before being served with a responsive pleading.” Fed.R.Civ.P. 15(a)(1) (2007) (amended 2009). Noting that TPX had not filed a “responsive pleading, but only a motion to dismiss, [which is] not considered a responsive pleading for purposes of Rule 15(a)[(l)],” Jacobs’s motion stated that “a plaintiff may amend the complaint once as a matter of right.” Since he had not previously exercised that right, Jacobs contended, in effect, that an intervening judgment could not abolish the right. Jacobs further asserted that the district court abused its discretion by refusing to allow an amendment under Rule 15(a)(2), which directs the court to “freely give leave [to amend] when justice so requires.”" }, { "docid": "11628354", "title": "", "text": "precedent rejects the fail-safe class prohibition, we conclude that the bankruptcy court did not abuse its discretion when it defined the class in the present case. III. Motion for Reconsideration Countrywide filed a Rule 59(e) motion for reconsideration, arguing that Plaintiffs’ claim for injunctive relief was mooted by a consent judgment agreed to by the Federal Trade Commission (“FTC”) and Countrywide in the United States District Court for the Central District of California (the “consent judgment”). The bank ruptcy court denied Countrywide’s Rule 59(e) motion for reconsideration, holding that the nationwide injunction in section IX of the consent judgment did not include all of the relief available to the class in the proposed injunction. Specifically, the bankruptcy court determined that the consent judgment did not moot the proposed injunction because (1) the consent judgment allows Countrywide to collect fees without Rule 2016(a) bankruptcy court authorization by following instead debtor notice procedures set forth in the FTC consent judgement and (2) the consent judgment fails to provide relief to Plaintiffs who had payments misapplied by Countrywide. We affirm the bankruptcy court’s denial of Countrywide’s motion for reconsideration of the certification order. Rule 59(e) motions are “not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir.2004) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)). They are used to “call[ ] into question the correctness of a judgment” and are “properly invoked ‘to correct manifest errors of law or fact or to present newly discovered evidence.’” In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir.2002) (quoting Wattman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.1989)). “Reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at 479 (internal citations omitted). We perceive no manifest error requiring the application of this extraordinary remedy because of Countrywide’s consent judgment with the FTC. In Templet, we refused to reverse a district court’s rejection of a Rule 59(e)" }, { "docid": "2470504", "title": "", "text": "could have ‘adopted’ on that point.” His allegations amount to an assertion that .the district court failed in its constitutional obligation to conduct a de novo review of the magistrate judge’s conclusions. But the magistrate judge did discuss the dismissal of the officers in his earlier R&R. The report focused on the statute of limitations, but the. magistrate judge stated that “even if the amended pleading were filed within the statute of limitations, application of the Texas statute would require that [the officers] be dismissed here, and again, they would be dismissed with prejudice.” His analysis is supported by numerous citations to cases and applicable stat-. utes. Contrary to Quinn’s assertion, then, there was analysis for the district court to adopt. The district court’s refusal to reconsider the state court’s decision is subject to review for an abuse of discretion. Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000). The focus of such review is whether the district court acted reasonably. Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). On the other hand, the state court’s order dismissing the defendants amounts to a dismissal for lack of subject-matter jurisdiction. We thus afford de novo review to the merits of the state court’s dismissal. See Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 570 (5th Cir. 2001), For clarity, we analyze each decision. We discuss the district court’s procedural denial first. In federal court, any “motion to alter or amend á judgment must be filed no later than 28 days after the entry of the judgmeni” Fed. R. Civ. P. 59(e). Such motions serve “the harrow purpose of allowing a party to correct manifest errors of law or fact dr to present newly discovered evidence.” Templet, 367 F.3d at 479 (alterations omitted). These motions should not be used to raise arguments that were presented or could have been presented in the past. Id. An untimely motion under Rule 59(e) is a nullity; the district court may refuse to consider it entirely. Washington v. Patlis, 868 F.2d 172, 174 (5th Cir. 1989); 11 Charles Alan Wright, Arthur R." }, { "docid": "14315732", "title": "", "text": "it is apparent that defendant would travel under Rules 59(e) and/or 60(b), Fed.R.Civ.P., which authorize district courts to grant relief from orders or judgments under certain narrow specified circumstances. Defendant’s Motion faces daunting threshold criteria. Indeed, “[i]n the interests of finality and conservation of scarce judicial resources, reconsideration of an order is an extraordinary remedy and is employed sparingly.” Gougler v. Sirius Products, Inc., 370 F.Supp.2d 1185, 1189 (S.D.Ala.2005); see also United States v. Bailey, 288 F.Supp.2d 1261, 1267 (M.D.Fla.2003); Spellman v. Haley, 2004 WL 866887, *2 (M.D.Ala. Feb. 22, 2002) (“litigants should not use motions to reconsider as a knee-jerk reaction to an adverse ruling”). A motion to reconsider is not a vehicle “to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, — U.S. -, 128 S.Ct. 2605, 2617 n. 5, 171 L.Ed.2d 570 (2008) (citation omitted). The Eleventh Circuit has also stated that “a motion to reconsider should not be used by the parties to set forth new theories of law.” Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir.1997); see also Russell Petroleum Corp. v. Environ Products, Inc., 333 F.Supp.2d 1228, 1234 (M.D.Ala.2004) (relying on Mays to deny motion to reconsider where movant advanced new arguments). Furthermore, the Eleventh Circuit has recently reaffirmed that “[t]he only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact. A Rule 59(e) motion cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.2007) (internal citations and quotations omitted). Simply put, “[a] party may move for reconsideration only when one of the following has occurred: an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or prevent manifest injustice.” Vidinliev v. Carey Int% Inc., 2008 WL 5459335, *1 (N.D.Ga. Dec. 15, 2008) (citations and internal quotation marks omitted); see also LeFrere v. Baldwin County" }, { "docid": "806459", "title": "", "text": "any, paid over to the Debtor. OPINION On October 16, 2006, the Debtor, Machne Menachem, filed a Motion for “Clarification and/or Reconsideration” regarding the Court’s confirmation of a plan advanced by proponent, Yaakov Spritzer. I mil treat the Motion as presented under Federal Rule of Civil Procedure 59, incorporated into bankruptcy matters by Federal Rule of Bankruptcy Procedure 9023. The Debtor attempts to advance several of the issues theretofore addressed at the confirmation hearing and at least one argument raised for the first time in its post-trial motion. Rule 59(e) cannot generally be used to raise arguments that were not raised at the initial hearing. Since specific grounds for a motion to amend or alter are not listed in the rule, the district court enjoys considerable discretion in granting or denying the motion. However, reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly. There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law. The Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment. Also, amendment of the judgment will be denied if it would serve no useful purpose. II Charles Alan Wright, Arthur K Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2006)(footnotes omitted). The Debtor, in its objection to the plan and at the time of the hearing on the plan, focused its argument on three prongs: 1. The Spritzer plan was contrary to New York law; 2. The plan was not feasible; and 3." }, { "docid": "4223758", "title": "", "text": "Plaintiffs motion, the record, the applicable law, and being otherwise duly advised, I deny Plaintiffs motions for the reasons that follow. II. Standard of Review When, as here, a motion for reconsideration is served within twenty-eight days of the entry of the order at issue, Federal Rule of Civil Procedure 59(e) applies. Holt v. United States, 249 Fed.Appx. 753, 757 (11th Cir.2007); Williams v. Cruise Ships Catering & Serv. Int’l, N.V., 320 F.Supp.2d 1347, 1357 (S.D.Fla.2004). Although Rule 59(e) does not set forth any specific criteria, courts have delineated three major grounds justifying reconsideration under Rule 59(e): “(1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.” Id. at 1357-58. I have also recognized that a possible basis for reconsideration is a “material misstatement of the facts by the court.” In re Garcia, 2002 WL 32372583, *1 (S.D.Fla. Nov. 4, 2002). However, it is well-settled that “motions for reconsideration are disfavored” and that relief under Rule 59(e) is an extraordinary remedy to be employed sparingly. Id.; Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 2008 WL 2074397, 2008 U.S. Dist. LEXIS 39630 (M.D.Fla. May 15, 2008) (citing U.S. v. Bailey, 288 F.Supp.2d 1261, 1267 (M.D.Fla.2003)). For example, “it is an improper use of the motion to reconsider to ask the Court to rethink what the Court ... already thought through — rightly or wrongly.” In re Garcia, 2002 WL 32372583, *1 (cites and quotes omitted). Moreover, Rule 59(e) may not be used “to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005). Keeping these principles in mind, I now turn to the specific matters raised in Plaintiffs motion. III. Analysis Because Plaintiff has failed to demonstrate that the unequal bargaining power complained of in this particular case constitutes a valid defense pursuant to the Convention, reconsideration is not warranted. As I noted in my Order Compelling Arbitration, the Eleventh Circuit has" }, { "docid": "10680360", "title": "", "text": "Attorney General of the law the State must follow. Under Brady, it is incumbent upon the State to turn over all favorable exculpatory evidence. It is not the sole arbiter of what must be turned over. See Kyles, 514 U.S. at 439 — 40, 115 S.Ct. 1555. As a secondary argument, the State contends that the police report was immaterial because it would not have led to the discovery of exculpatory evidence. For support, it relies on the three retraction affidavits filed 23 years later. The affidavits do not undermine the Brady claim until they become admissible and eligible for consideration. IV. Denial of the Rule 59(e) Motion to Alter or Amend The State appeals the District Court’s denial of its Rule 59(e) motion based on the three late-filed affidavits. Rule 59(e) permits the amendment, alteration, or vacation of a judgment after its entry. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2810.1 (3d ed.1998). It is an “extraordinary remedy” and is therefore “used sparingly.” Id. Rule 59(e) motions may be granted upon a showing of “newly discovered or previously unavailable evidence.” Id. “To constitute ‘newly discovered evidence,’ the evidence must have been previously unavailable.” GenCorp, Inc. v. Amer. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.1999). This requires a showing that the evidence could not have been discovered previously with due diligence. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2808 (3d ed.1998) (“The moving party must have been excusably ignorant of the facts despite using due diligence to learn about them.”); see also Bogart v. Chapell, 396 F.3d 548, 558 (4th Cir.2005) (upholding the denial of a Rule 59(e) motion where “the movant presented no legitimate justification for failing to timely submit the evi dence and had advance notice of the ... issues.”); Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688, 696-97 (5th Cir.2003) (“[A] 59(e) motion to reconsider should not be granted unless ... the facts alleged ... could not have been discovered earlier by proper diligence.”); Committee for First Amendment v. Campbell, 962" }, { "docid": "4551461", "title": "", "text": "issued.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998); 1704 Farmington, LLC v. City of Memphis, 2009 WL 2065337, *2 (W.D.Tenn.2009); Simmons v. Lake Erie Correctional Inst., 2009 WL 3172866, *1 (N.D.Ohio 2009). As succinctly stated by the Northern District of Ohio: It is not the function of a motion to reconsider either to renew arguments already considered and rejected by a court or “to proffer a new legal theory or new evidence to support a prior argument when the legal theory or argument could, with due diligence, have been dis covered and offered during the initial consideration of the issue.” McConocha v. Blue Cross and Blue Shield Mut. of Ohio, 930 F.Supp. 1182, 1184 (N.D.Ohio 1996) (citation omitted). Additionally, Rule 59(e) is not intended to be used by an “unhappy litigant” as a means for rehashing matters a court has already decided. If the court has ruled and the movant is dissatisfied with the outcome, oftentimes an appeal is the more appropriate remedy. Liberte Capital Group v. Capwill, 630 F.Supp.2d 835, 838 (N.D.Ohio 2009). With regard to the “new evidence” prong of Rule 59(e), courts have routinely held that the party moving for Rule 59(e) relief must show that there is new evidence which was previously unavailable to the movant prior to entry of the original judgment. Montgomery v. Bagley, 581 F.3d 440, 451-52 (6th Cir. 2009); General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local No. 957 v. Dayton Newspapers, Inc., 190 F.3d 434, 445 (6th Cir.1999); In re Grady, 2009 WL 3254435, *3 (Bankr.W.D.Mich.2009); Matter of No-Am Corp., 223 B.R. 512, 513 (Bankr.W.D.Mich.1998); In re Continental Holdings, Inc., 170 B.R. 919, 933 (Bankr. N.D.Ohio 1994). “It is well-established ... that a district court does not abuse its discretion in denying a Rule 59 motion when it is premised on evidence that the party had in his control prior to the original entry of judgment.” Emmons v. McLaughlin, 874 F.2d 351, 358 (6th Cir. 1989). In moving for Rule 59(e) relief under the “newly discovered evidence” theory, a party may not" }, { "docid": "3204719", "title": "", "text": "filed in this Court that Alvin Combs, the individual who hand delivered her Rule 59(e) motion to the district court’s clerk’s office, took her motion to the courthouse on November 17, 2014 and encountered a delay passing through security screening that resulted in his late arrival to the clerk’s office. Nevertheless, she asserts, Combs gave the motion to a court employee, who then filed it with the district court. For these reasons, Emery argues that her Rule 59(e) motion was timely and should not have been denied. Even if we assume, however, that Emery’s motion was timely filed, the district court did not abuse its discretion in denying it. “The only grounds for granting a Rule 59 motion are newly-discovered evidence or manifest errors, of law or fact. A Rule 59(e) motion cannot be used to relitigate old matters, raise argument[,] or present evidence that could have been raised prior to the entry of judgment.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir.2010) (alterations and internal quotation marks and citation omitted). Emery failed to articulate in her motion any manifest errors in the district court’s summary judgment order or any newly discovered evidence that would affect the judgment. Rather, she merely restated the points she made throughout the district court proceedings and most recently in her summary judgment briefing. Although she alluded to newly discovered evidence in her Rule 59(e) motion, all of the evidence upon which she relied was available to the district court when it rendered its decision on the parties’ cross motions for summary judgment. Accordingly, the district court did not abuse its discretion in denying Emery’s Rule 59(e) motion even if the motion was timely filed. Moreover, to the extent Emery argues that her Rule 59(e) motion was timely filed so as to toll the period for filing a notice of appeal from the district court’s October 14, 2014 final judgment, her argument is foreclosed because a panel of this Court previously decided that she failed to timely appeal the district court’s summary judgment order. Second, the district court acted within its discretion" }, { "docid": "18994069", "title": "", "text": "10 days of this court’s entry of final judgment. Rule 59(e) applies. A Rule 59(e) motion “calls into question the correctness of a judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir.2004) (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir.2002)). “A motion to alter or amend the judgment under Rule 59(e) ‘must clearly establish either a manifest error of law or fact or must present newly discovered evidence’ and ‘cannot be used to raise arguments which could, and should, have been made before the judgment issued.’ ” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir.2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)). Relief is also appropriate when there has been an intervening change in the controlling law. Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 567 (5th Cir.2003). Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, — U.S. -, 128 S.Ct. 2605, 2617 n. 5, 171 L.Ed.2d 570 (2008) (quoting 11 Charles A. Wright, Miller & Kane, Federal Practice & Procedure § 2810.1, at 127-28 (2d ed. 1995)). “A Rule 59(e) motion is not a ‘vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment’ but instead has a ‘narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.’ ” Baldwin v. Layton, 300 Fed.Appx. 321, 323-24 (5th Cir.2008) (quoting Templet, 367 F.3d at 479). B. Analysis 1. Substantial Similarity May Properly Be Decided on a 12(b)(6) Motion to Dismiss Randolph contends that dismissal under Rule 12(b)(6) on the basis of lack of substantial similarity was improper because in copyright cases, “ ‘a determination of substantial similarity should typically be left to the fact-finder.’ ” (Docket Entry No. 34 at 4 (quoting King v. Ames, 179 F.3d 370, 376 (5th Cir.1999))). Randolph also contends that this court applied the wrong Rule 12(b)(6)" }, { "docid": "22126319", "title": "", "text": "judgment After the district court had dismissed his complaint and Arthur had appealed that dismissal, Arthur timely filed a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) in the district court. In this motion, he argued, inter alia, that a new affidavit from Ray Melson provided evidence of Arthur’s innocence. In support of this motion, he submitted three affidavits from Melson and an affidavit from Stephen Gustat. The affidavits from Melson provide Arthur with an alibi, recant that alibi, and repudiate the recantation. The district court discredited Melson’s third affidavit because it was unsworn, created more questions than it answered regarding Melson’s credibility, “actually diminishe[d] the value of anything Melson may have [had] to say to the point of no credibility at all,” and was filed only as “a last-minute effort” because it was not filed earlier. Arthur XXI, 2007 WL 2539962 at *2. It concluded that Arthur’s argument that he was not afforded significant procedural safeguards was considered on habe-as, that he failed to raise his ineffective assistance of counsel claim in his initial § 1983 complaint, and that the court had properly considered Arthur’s delay in dismissing his complaint. Id. 2007 WL 2539962 at *2-3. We review the denial of a Rule 59 motion for abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir.2006). “The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.” In re Kellogg, 197 F.3d 1116, 1119 (11th Cir.1999). “[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005). Arthur cannot show that the district court abused its discretion in denying his motion to alter or amend the judgment. Because Melson’s affidavit was unsworn, it was not properly considered by the district court. See Holloman v. Jacksonville Housing Auth., No. 06-10108, 2007 WL 245555 at *2, — Fed.Appx. - (per curiam) (“unsworn statements, even from pro se parties," }, { "docid": "4551460", "title": "", "text": "(6th Cir. BAP 2008); In re Redman Oil Co., Inc., 100 B.R. 945, 948 (Bankr.S.D.Ohio 1989). In addition to demonstrating one of the grounds for relief under Rule 59(e), the movant must also be able to show that correcting the defect by altering or amending the judgment “will result in a different disposition of the case.” Shepard v. U.S., 2009 WL 3106554, *1 (E.D.Mich.2009). Rule 59(e) relief is only to be granted in limited circumstances and should not be invoked in an attempt to “relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, — U.S. -, 128 S.Ct. 2605, 2617, n. 5, 171 L.Ed.2d 570 (2008); Aull v. Osborne, 2009 WL 722605, *1 (W.D.Ky.2009); Vanguard Transp. Sys., Inc. v. Volvo Trucks North America, Inc., 2006 WL 3097189, *2 (S.D.Ohio 2006). Numerous courts in the Sixth Circuit have recognized that “parties should not use [Rule 59(e) motions] to raise arguments which could, and should, have been made before judgment issued.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998); 1704 Farmington, LLC v. City of Memphis, 2009 WL 2065337, *2 (W.D.Tenn.2009); Simmons v. Lake Erie Correctional Inst., 2009 WL 3172866, *1 (N.D.Ohio 2009). As succinctly stated by the Northern District of Ohio: It is not the function of a motion to reconsider either to renew arguments already considered and rejected by a court or “to proffer a new legal theory or new evidence to support a prior argument when the legal theory or argument could, with due diligence, have been dis covered and offered during the initial consideration of the issue.” McConocha v. Blue Cross and Blue Shield Mut. of Ohio, 930 F.Supp. 1182, 1184 (N.D.Ohio 1996) (citation omitted). Additionally, Rule 59(e) is not intended to be used by an “unhappy litigant” as a means for rehashing matters a court has already decided. If the court has ruled and the movant is dissatisfied with the outcome, oftentimes an appeal is the more appropriate remedy. Liberte Capital Group" }, { "docid": "22126320", "title": "", "text": "in his initial § 1983 complaint, and that the court had properly considered Arthur’s delay in dismissing his complaint. Id. 2007 WL 2539962 at *2-3. We review the denial of a Rule 59 motion for abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir.2006). “The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.” In re Kellogg, 197 F.3d 1116, 1119 (11th Cir.1999). “[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005). Arthur cannot show that the district court abused its discretion in denying his motion to alter or amend the judgment. Because Melson’s affidavit was unsworn, it was not properly considered by the district court. See Holloman v. Jacksonville Housing Auth., No. 06-10108, 2007 WL 245555 at *2, — Fed.Appx. - (per curiam) (“unsworn statements, even from pro se parties, should not be ‘considered] in determining the propriety of summary judgment’ ”) (quoting Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980) (per cu-riam)). To the extent that it was considered, however, it was not newly discover ed. It could have been discovered during the five years after Melson had repudiated his first affidavit, and filed with the complaint. As the district court held, by repudiating a repudiation of his initial affidavit, Melson’s third affidavit raised more questions, at least regarding his credibility, than it answered. III. CONCLUSION We conclude that the district court did not abuse its discretion in dismissing Arthur’s § 1983 action, especially given the strong presumption against the grant of equitable relief. There was no justification for Arthur’s failure to bring his request for physical evidence for DNA testing earlier to allow sufficient time for full adjudication on the merits of this claim. The district court also did not abuse its discretion in denying Arthur’s motion to alter or amend the judgment based on newly discovered evidence. Accordingly, the district court’s" }, { "docid": "3204718", "title": "", "text": "court has a range of options; and so long as the district court does not commit a clear error in judgment, we will affirm the district court’s decision.” Id. We, like the district court, must liberally construe pleadings prepared by pro se litigants. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998). Pro se litigants still must comply with procedural rules, however. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.2007). First, the district court did not abuse its discretion in denying Emery’s Rule 59(e) motion. The court entered a final judgment in Emery’s case on October 20, 2014. “A motion to alter or amend a judgment must be filed no- later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). Thus, Emery’s deadline to file her motion in this case was November 17, 2014. Emery’s motion was filed on November 18, one day late. Accordingly, the district court was entitled to deny it as untimely. See Young, 358 F.3d at 864. Emery contends in her brief and via her motion filed in this Court that Alvin Combs, the individual who hand delivered her Rule 59(e) motion to the district court’s clerk’s office, took her motion to the courthouse on November 17, 2014 and encountered a delay passing through security screening that resulted in his late arrival to the clerk’s office. Nevertheless, she asserts, Combs gave the motion to a court employee, who then filed it with the district court. For these reasons, Emery argues that her Rule 59(e) motion was timely and should not have been denied. Even if we assume, however, that Emery’s motion was timely filed, the district court did not abuse its discretion in denying it. “The only grounds for granting a Rule 59 motion are newly-discovered evidence or manifest errors, of law or fact. A Rule 59(e) motion cannot be used to relitigate old matters, raise argument[,] or present evidence that could have been raised prior to the entry of judgment.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir.2010) (alterations and internal quotation marks and citation omitted). Emery" }, { "docid": "18994068", "title": "", "text": "123 F.3d 336, 339 (5th Cir.1997). Reconsideration motions are generally analyzed under the standards for a motion to alter or amend judgment under Rule 59(e) or a motion for relief from a judgment or order under Rule 60(b). Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir.1998). If a motion for reconsideration is filed within ten days of the judgment or order of which the party complains, it is considered a Rule 59(e) motion; otherwise, it is treated as a Rule 60(b) motion. Id. (internal citations omitted); see also Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.1990) (“Under which Rule the motion falls turns on the time at which the motion is served. If the motion is served within ten days of the rendition of judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b).”), abrogated on other grounds, Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994) (en banc). Randolph’s motion was filed within 10 days of this court’s entry of final judgment. Rule 59(e) applies. A Rule 59(e) motion “calls into question the correctness of a judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir.2004) (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir.2002)). “A motion to alter or amend the judgment under Rule 59(e) ‘must clearly establish either a manifest error of law or fact or must present newly discovered evidence’ and ‘cannot be used to raise arguments which could, and should, have been made before the judgment issued.’ ” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir.2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)). Relief is also appropriate when there has been an intervening change in the controlling law. Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 567 (5th Cir.2003). Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, —" }, { "docid": "11628355", "title": "", "text": "We affirm the bankruptcy court’s denial of Countrywide’s motion for reconsideration of the certification order. Rule 59(e) motions are “not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir.2004) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)). They are used to “call[ ] into question the correctness of a judgment” and are “properly invoked ‘to correct manifest errors of law or fact or to present newly discovered evidence.’” In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir.2002) (quoting Wattman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.1989)). “Reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at 479 (internal citations omitted). We perceive no manifest error requiring the application of this extraordinary remedy because of Countrywide’s consent judgment with the FTC. In Templet, we refused to reverse a district court’s rejection of a Rule 59(e) motion when “the underlying facts were well within the [plaintiffs’] knowledge prior to the district court’s entry of judgment.” Id. Here, the consent judgment was entered by the Central District of California on June 15, 2010. The bankruptcy court issued its order on July 21, 2010. The defendants first brought the consent judgment to the bankruptcy court’s attention in its Rule 59(e) motion, filed on August 4, 2010. As the bankruptcy court emphasized, Countrywide could have filed a supplemental motion notifying the bankruptcy court of the consent judgment just as Countrywide had done after Wilbom II was decided. Because Countrywide had forty-one days to apprise the bankruptcy court of the consent judgment before the bankruptcy court issued its certification order, the consent judgment did not constitute newly discovered evidence compelling Rule 59(e) relief as Countrywide alleges. Countrywide argues that it could not have known that the bankruptcy court would certify the class only for injunctive relief and therefore, that it could not have known that the consent judgment would moot the class certification grant. However," }, { "docid": "17524667", "title": "", "text": "See Appeal of Sun Pipe Line Co., 831 F.2d 22, 24 (1st Cir.1987); see also Aybar v. Crispin-Reyes, 118 F.3d 10, 14 n. 3 (1st Cir.1997) (regardless of how it is characterized, post-judgment motion made within ten days of entry of judgment that questions correctness of judgment is properly construed under Rule 59(e)). To meet the threshold requirements of a successful Rule 59(e) motion, the motion “must demonstrate the reason why the court should reconsider its prior decision and must set forth facts or law of a strongly convincing nature to induce the court to reverse its earlier decision.” Lopez Jimenez v. Pabon Rodriguez (In re Pabon Rodriguez), 233 B.R. 212, 219 (Bankr.D.P.R.1999), aff'd, 17 Fed.Appx. 5 (1st Cir.2001). In order to be successful on a Rule 59(e) motion, the moving party must establish a manifest error of law or fact or must present newly discovered evidence. Id.; see also Landrau-Romero v. Banco Popular De P.R., 212 F.3d 607, 612 (1st Cir.2000). The moving party cannot use a Rule 59(e) motion to cure its procedural defects or to offer new evidence or raise arguments that could and should have been presented originally to the court. See Rodriguez, 233 B.R. at 219. Rule 59(e) motions are generally denied because of the narrow purpose for which they are intended. Id. at 220. As noted above, the Appellant was barred from pursuing her claims under the Affidavit of Support pursuant to either the Rooker-Feldman doctrine or the doctrine of res judicata. Therefore, the bankruptcy court did not make a manifest error of law when it dismissed the adversary complaint. Moreover, the Appellant simply rehashed prior arguments and did not offer any “newly discovered evidence” warranting the relief requested in her motions for reconsideration. Therefore, we conclude that the bankruptcy court did not abuse its discretion in denying those motions. CONCLUSION For the reasons set forth above, we AFFIRM the bankruptcy court’s order dismissing the adversary complaint, and the orders denying the Appellant’s motion for reconsideration and the amended motion for reconsideration. . The bankruptcy court's decision is reported at Schwartz v. Schwartz (In" }, { "docid": "20209055", "title": "", "text": "Templet v. HydroChem, Inc., 367 F.3d 473, 478-79 (5th Cir.2004). “A motion to alter or amend the judgment under Rule 59(e) ‘must clearly establish either a manifest error of law or fact or must present newly discovered evidence’ and ‘cannot be used to raise arguments which could, and should, have been made before the judgment issued.’ ” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir.2003) Cquoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)). It also cannot be used to re-litigate issues “that simply have been resolved to the movant’s dissatisfaction.” In re Self, 172 F.Supp.2d 813, 816 (W.D.La.2001). Altering, amending or reconsidering a judgment is an extraordinary measure that should rarely be granted and only when there is (1) an intervening or change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice. Schiller v. Physicians Resource Group, Inc., 342 F.3d 563, 567 (5th Cir.2003). A court has considerable discretion in determining whether to reopen a case in response to a motion for reconsideration under Rule 59(e). Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n. 14 (5th Cir.1994) (en banc). In such a circumstance the court “must strike the proper balance between two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts.” Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir.1993). “Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done, and the burden of showing harmful error rests on the party seeking new trial.” Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir.1999), cert. denied, 529 U.S. 1019, 120 S.Ct. 1420, 146 L.Ed.2d 312 (2000). Arguing that manifest errors of fact or law exist in the orders and opinions that form" } ]

[ { "docid": "11998238", "title": "", "text": "not testify at the defendant’s trial. The inmate related a statement of the codefendant from which the jury could infer the defendant’s guilt. The Supreme Court found that the defendant was not deprived of any right of confrontation as to whether the co-defendant actually made the statement to the witness, since the witness was cross-examined, and that the circumstances under which the statement was made indicated the content of the statement was true. Applying this two-fold test to the facts in this ease, we find that the circumstances indicate that the challenged statements possess sufficient reliability to satisfy the demands of the sixth amendment. The statements in question did not involve the use of a confession made under the coercive circumstances of an official interrogation, as did Bruton. Although the statements were damaging, like the one in Dutton, they were in no sense crucial or devastating. See, Bruton v. United States, supra. There was no indication of prosecutorial misconduct or wholesale denial of cross-examination. See, Douglas v. Alabama, supra-, Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). At trial, the prosecution presented more than a dozen witnesses, all of whom were subject to cross-examination. Perhaps the most damaging evidence was the testimony of three eyewitnesses to the May 24,1968 mass meeting. In view of the extent of the testimony inculpating Fort, these two statements, again like the one in Dutton, were “of peripheral significance at most.” Dut-ton v. Evans, supra, 400 U.S. at 87, 91 S.Ct. 219. Fort was not deprived of his right of confrontation on the issue of whether Pugh, a coconspirator, actually made the statements to Turner and White. The confrontation issues arise because the jury was asked to infer from the statements that Fort was a coeonspirator and that Fort actually made the statements to Pugh. We conclude that there was no denial of the right of confrontation with respect to the latter issue. The possibility that Pugh’s statements were based on faulty recollection is highly remote; on one occasion Pugh had spoken with Fort only moments earlier, and on the" } ]

[ { "docid": "23319069", "title": "", "text": "substantiating King’s activities as described by Powell, we do not regard Powell’s statements as crucial or devastating. It is true that the bulk of this evidence is circumstantial, but such evidence is weighed on the same scale and laid before the jury in the same manner as direct evidence. Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Nelson, 419 F.2d 1237, 1240-41 (9th Cir. 1969). Of the other factors mentioned in Dutton, use of a coerced confession, prosecutorial misconduct, use of a paper transcript, and the wholesale denial of cross-examination were not present in the instant case. The final factor mentioned, the effects of a joint trial, is particularly relevant here in that this portion of the appeal is based on the contention that one of those effects— the absence of King’s ability to cross-examine Powell — violated King’s rights under the confrontation clause. In Dutton, the Supreme Court did discuss three cases involving the potential for denial of cross-examination of a co-defendant inherent in a joint trial. 400 U.S. at 83-87, 91 S.Ct. 210. Those cases, however, all focused on confessions by one co-defendant implicating the other, which were absolutely inadmissible as against the implicated co-defendant. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1965). See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Here, we deal with statements which would normally be admissible against the implicated co-defendant, King, under a valid hearsay exception. We have already considered whether the confrontation clause was violated by the instant use of the co-conspirator hearsay exception, and we have held that it was not. The confrontation clause does not absolutely require cross-examination, but rather safeguards of reliability. We think those safeguards were present here. Furthermore, it is not clear that severance would have had any beneficial effect for King. His counsel has only alleged, based" }, { "docid": "15741579", "title": "", "text": "nor did they request other limiting instructions at any time during the course of trial. Thus they have no cause to challenge those instructions on appeal. See Santiago, supra at 1136. This is true particularly in light of the fact that evidence adduced independently of the statements clearly established an active conspiracy among the three appellants and Jenny Huey. As to the Bruton issue, we do not believe that constitutional error was committed by the trial court’s refusal to grant a severance. Though damaging to appellants, the statements, when considered within the context of the other evidence, were not of a “devastating”, “crucial” or “powerfully incriminating” nature, to which Bruton largely has been limited. See Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Neither were they inherently unreliable statements as those of a coerced confession, see Bruton, supra; Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), or those produced by prosecutorial or judicial misconduct, United States v. Cogwell, 486 F.2d 823, 834 (7th Cir. 1973). The decision to grant a severance lies within the sound discretion of the trial court, reversible only for an abuse of discretion. United States v. All State Mortgage Corp., 507 F.2d 492, 495 (7th Cir. 1974). In order to secure a severance the moving party must establish that she or he will be unable to obtain a fair trial. United States v. Crouch, 528 F.2d 625, 631 (7th Cir. 1976). Appellants have not made this showing with respect to the extra-judicial statements. The trial judge properly exercised his discretion. ■We have scrutinized the other contentions advanced by appellants and find them devoid of merit. It is appropriate to note that in its ultimate significance this case is immensely tragic not only because it involves the corruption of human beings but because the offenses found by the jury reflect a callous disregard by public servants of their moral and legal responsibilities and a sordid abuse of their public trust. Such misconduct by law enforcement officials undermines respect for the legal principles upon which the survival" }, { "docid": "22163795", "title": "", "text": "the statement were not admissible under the coconspirator rule, it is doubtful that its admission would contravene Bruton. The statement was hardly crucial to the government’s case, in contrast to the confession that was admitted in Bruton. See id., 391 U.S. at 128, 88 S.Ct. at 1623; Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970). John Warren was clearly implicated by Cruse’s testimony. He was serving as navigator of the Stormy Seas and had supplied a boat to be used to unload the marijuana upon return to the United States. Moreover, the statement is not clearly and directly inculpatory of John Warren. He was not mentioned by name, and the statement did not refer to any criminal activity. We think this statement hardly more incriminating than one calling for the division of the proceeds of a bank robbery “four ways” among conspirators, a comment we held not to be directly inculpatory of a codefendant in United States v. Hicks, 524 F.2d 1001, 1002-03 (5th Cir. 1975), cert. denied, 424 U.S. 946, 96 S.Ct. 1417, 47 L.Ed.2d 353 (1976). See United States v. Grillo, 527 F.2d 1344 (5th Cir. 1976). In sum, Thomas Warren’s statement was “of peripheral significance at most.” Dutton v. Evans, 400 U.S. at 87, 91 S.Ct. at 219. It added insignificant, if any, weight to the Government’s strong case against John Warren. . Our holding that a violation of rule 615 does not call for the automatic exclusion of witnesses or testimony is consistent with the principle that the failure of a witness to comply with a sequestration order does not alone render his testimony inadmissible. See United States v. Suarez, 487 F.2d 236 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1572, 39 L.Ed.2d 878 (1974). Whether to exclude a witness who violated the order is left to the sound discretion of the trial judge, and he ordinarily will not exclude witnesses without a demonstration of probable prejudice. E. g., United States v. Phifer, 400 F.Supp. 719, 734 (E.D.Pa.1975), aff’d, 532 F.2d 748 (3d Cir. 1976). Moreover," }, { "docid": "12956822", "title": "", "text": "error in the denial of his motion and urges us to reverse with directions to dismiss the indictment. The question whether the Government is compelled to record grand jury testimony was considered in our recent case of United States v. Franklin, 429 F.2d 274 (8th Cir., 1970), and resolved adversely to the position here espoused by appellants. Further discussion is unnecessary. We are content to reject appellant’s contention on the basis of Judge Vogel’s exhaustive exposition of the controlling law in the Franklin case. THE SEVERANCE ISSUE Appellant Wilson complains because the district court refused to sever him from appellant Kane, contending that he was denied a fair trial by reason of statements made by Kane during the course of the robbery. Shortly after appellants had entered the bank Kane informed Cashier Kan-steiner, “We’re going to hold your bank up this afternoon.” Kane made other similar utterances, using the plural pronoun, “We.” Wilson claims here that since the statements incriminated him, the principle promulgated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) was violated, compelling a reversal. We disagree. Appellants, having participated in the same act constituting the offense, were properly joined as defendants in the indictment. Rule 8(a), Federal Rules of Criminal Procedure. Wilson’s motion to sever having been addressed to the sound discretion of the district judge, was properly denied unless clear prejudice is shown. Rule 14, Federal Rules of Criminal Procedure; Miller v. United States, 410 F.2d 1290, 1292-1293 (8th Cir.), cert. denied, 396 U.S. 830, 90 S.Ct. 81, 24 L.Ed.2d 80 (1969); Caton v. United States, 407 F.2d 367, 372 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969). Since the record is devoid of evidence showing that any statement made by Kane prejudiced Wilson, we hold that the court did not abuse its discretion. The Bruton decision, being clearly distinguishable on the controlling facts, does not aid Wilson. Unlike Bruton, we are not confronted with admission into evidence of an out-of-court confession made by one defendant which implicated his codefendant. All we have" }, { "docid": "864032", "title": "", "text": "Appellants’ third issue on appeal questions whether or not the trial court erred in denying appellants’ Motions For Severance. Federal Rule of Criminal Procedure 8(b) permits two or more defendants to be charged in the same indictment. In that instant case, the charges in the indictment and the government’s evidence in support of the charges, indicated that all three defendants were acting hand-in-glove in the sale of the machine gun. As a general rule, when an indictment charges a crime involving principals and aider-abettors, those charged should be tried together. The granting of separate trials is within the discretion of the trial court. Absent a showing of prejudice and an abuse of discretion, the trial court’s decision denying the motions for severance will not be disturbed. No demonstration of prejudice has been shown and no error occurred. More is required to establish abuse of discretion than to show that separate trials might have given defendants a better chance for acquittal. United States v. Knowles, 572 F.2d 267 (10th Cir. 1978); United States v. Rodgers, 419 F.2d 1315 (10th Cir. 1969). A motion for severance is properly left to the discretion of the trial judge. We hold that no abuse of discretion occurred in this case. See United States v. Beathune, 527 F.2d 696 (10th Cir. 1975). IV. The fourth issue raised by appellants involves the question of the admissibility of statements made by co-defendants. Appellants argue that the rule set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) is applicable to the facts in this case. Although admitting that Bruton was based on a confession of a co-defendant and not on other types of statements such as those made in the current action, appellants urge us to expand Bruton to cover any statements made by co-defendants which could be construed as confessions. This we decline to do. We have held that even when a conspiracy is not charged, as is true in the present case, statements such as those made by the co-defendants in this case are admissible where the existence of" }, { "docid": "22991972", "title": "", "text": "See also Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The relevant factual inquiry is whether, under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration. United States v. Adams, 446 F.2d 681, 683 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971). See Dutton v. Evans, supra, 400 U.S. at 88, 91 S.Ct. 210; California v. Green, supra, 399 U.S. at 161, 90 S.Ct. 1930; United States v. Menichino, 497 F.2d 935, 943 (5th Cir. 1974); United States v. Baxter, 492 F.2d 150, 177 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). The right of cross-examination of opposing witnesses is a core value in our system of justice. It is through this testing process that the truth is seen most likely to emerge. “The decisions of [the Supreme] Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-deter mining process in criminal trials by assuring that ‘the trier of the fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S., at 161, 90 S.Ct. 1930.” Dutton v. Evans, supra, 400 U.S. at 89, 91 S.Ct. at 220. Our Court has construed the Supreme Court decisions as requiring a case-by-case analysis. United States v. Carlson, 547 F.2d 1346 at 1357 (8th Cir. 1976); United States v. Kelley, 526 F.2d 615, 620 (8th Cir. 1975), cert. denied, 424 U.S. 971, 96 S.Ct. 1471, 47 L.Ed.2d 739 (1976). The primary consideration in this analysis is the extent to which the declarant is available to testify and be subject to cross-examination. We must consider the degree of prejudice to the fact-finding process resulting from the declarant’s partial availability or nonavailability. In weighing this" }, { "docid": "12035002", "title": "", "text": "U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He bases his claim upon the admission of testimony of Joseph Baron relating conversations between Baron and petitioners Tamaleo and Cassesso which tended to link Limone to the decision to kill Deegan. A short discussion of the underpinnings of Bruton discloses the inappropriateness of this claim. Bruton is concerned with the prejudice inherent in the introduction of a confession made by one co-defendant which implicates another, non-confessing co-defendant. In the absence of an established exception to the hearsay rule, the confession could not be offered against the non-confessor. But in a joint trial of the two co-defendants, the same jury which decides the non-confessor’s case has heard the confession, though it was not offered against him. The Court, in Bruton, held that limiting instructions, the normal means to insure that such inadmissible evidence is not considered by a jury, were insufficient to cure the extreme prejudice created by the co-defendant’s confession. Therefore, the proper remedy would be to sever the trials of the defendants. In this case, the statements at issue were, at most, admissions made by various of the petitioners in the course of a conspiracy or joint criminal enterprise. In both Massachusetts, French, supra, 357 Mass, at 380, 259 N.E.2d 195, and in the federal courts, United States v. Clayton, 450 F.2d 16 (1st Cir. 1971), statements by co-conspirators made during the pendency and in furtherance of a criminal conspiracy are admissible against all conspirators as an exception to the hearsay rule. If, as the petitioner requests, the trials had been severed, the very same statements could have been offered against him at his separate trial, given a proper showing of conspiracy. The petitioner, accordingly, has not suffered prejudice because he was tried together with the other defendants. Bruton is inapplicable. Petitioner’s arguments resolve into a basic confrontation clause challenge to the co-conspirator exception to the hearsay rule. There is no merit in that claim. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). In a practical sense, moreover, the questioned testimony was of minimal" }, { "docid": "16984875", "title": "", "text": "inculpatory statements made by Barnes, Sr. McCown also argues that he was unfairly prejudiced because of his association with Barnes, Sr., and Barnes, Jr., who were depicted throughout the trial as “despicable individuals constantly and relentlessly engaging in their unlawful pursuits.” According to McCown, only a severance could have prevented a “spillover” or “transference” of guilt from his co-defendants to him. We note first that the Bruton rule is inapplicable to this case. In Bruton, the Supreme Court held that admission at a joint trial of a co-defendant’s confession implicating the defendant violated the defendant’s sixth amendment right to confrontation. The inculpatory statements which form the basis of McCown’s Bruton claim were not statements made in a confession, but were statements made by Barnes, Sr., in furtherance of a conspiracy. The co-conspirator statements of which McCown complains were admissible under the co-conspirator exception to the hearsay rule, for there was independent evidence that a conspiracy existed, that the statements were made in furtherance of that conspiracy, and that McCown had knowledge of the conspiracy and participated in it. Fed.R.Evid. 801(d)(2)(E); United States v. Federico, 658 F.2d 1337, 1342 (9th Cir.1981); United States v. Fielding, 645 F.2d 719, 726 (9th Cir.1981); see United States v. Weaver, 594 F.2d 1272, 1274 (9th Cir.1979). Admission of the co-conspirator statements did not jeopardize McCown’s sixth amendment right to confrontation, since the admitted statements substantially met the indicia of reliability set forth by the Supreme Court in Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970) (plurality opinion). See United States v. Snow, 521 F.2d 730, 734-35 (9th Cir.1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883, 47 L.Ed.2d 101 (1976). Thus, we are left with only the claim that severance should have been granted to prevent transference of guilt from the other defendants to McCown. The decision of whether or not to sever is left to the discretion of the district court. United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982); United States v. Davis, 663 F.2d 824, 832 (9th Cir. 1981); United States v. Donaway, 447" }, { "docid": "17513559", "title": "", "text": "confessor made no statement inculpating the nonconfessor.” 391 U.S. at 126, 88 S.Ct. at 1622. If a principal’s confession makes no reference to an accomplice, no constitutional question arises. Later in the opinion, Mr. Justice Brennan wrote that “Evans’ oral confessions were in fact testified to, and were therefore actually in evidence. That testimony was legitimate evidence against Evans and to that extent was properly before the jury during its deliberations.” Id. at 127, 88 S.Ct. at 1623. Similarly, in White v. United States, 5 Cir., 1969, 415 F.2d 292, cert. denied, 397 U.S. 993, 90 S.Ct. 1128, 25 L.Ed.2d 400 (1970), an oral confession of codefendant Metz was introduced at the joint trial of Metz and White. We found that “Since Metz’s confession did not implicate or inculpate White, it follows that White was not denied his right of confrontation.” 415 F.2d at 294. See also Brooks v. United States, 5 Cir., 1969, 416 F.2d 1044, 1051; Wapnick v. United States, 2 Cir., 1969, 406 F.2d 741, 742; United States v. Lipowitz, 3 Cir., 1969, 407 F.2d 597, 601-603; United States v. Levinson, 6 Cir., 1968, 405 F.2d 971, 987-988; Slawek v. United States, 8 Cir., 1969, 413 F.2d 957, 960-964 (per the Judge, now Justice Blackmun); United States v. Santos, 9 Cir., 1970, 430 F.2d 1295. . See Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27" }, { "docid": "23274646", "title": "", "text": "391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), Wilson argues that the declarant’s unavailability for cross-examination violated his sixth amendment right of confrontation. We disagree. In Bruton, a confession implicating both petitioner and a codefendant was admitted subject to a cautionary instruction warning the jury that the confession was inadmissible hearsay against ■ the petitioner. The Supreme Court held this to be a violation of the confrontation clause, notwithstanding the cautionary instruction, because a substantial risk existed that the jury would consider the confession in determining the petitioner’s guilt. However Bruton involved no recognized exception to the hearsay rule. Indeed it has become well settled that the Bruton rule is limited to circumstances where the out-of-court statements are inadmissible hearsay. This case involves a recognized exception to the hearsay rule and is therefore controlled by Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). In Dutton, an extra-judicial statement of an alleged accomplice was admitted under a Georgia statute which pérmitted admission of such statements during the concealment phase of a conspiracy. The Supreme Court held that admission of the statement did not violate Evans’ right of confrontation because the statement bore traditional indicia of reliability and was neither crucial nor devastating. We construe Dutton as requiring a case-by-case analysis in determining whether the application of an exception to the hearsay rule complies with the confrontation clause. The relevant factual inquiry is whether, under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration. United States v. Adams, 446 F.2d 681, 683 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971); see also, Dutton v. Evans, supra, 400 U.S. at 89, 91 S.Ct. 210; United States v. Baxter, 492 F.2d 150, 177 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). Here, under the standard enunciated above, the admission of Kelley’s statement did not violate Wilson’s right of confrontation. Kelley’s statement was certainly a declaration against his penal interest;" }, { "docid": "16780655", "title": "", "text": "all the appellants except Carson to the extent it implied that Carson, Tyson, Thompson and Terry, the four indictees, had acted in concert, as charged in the indictment, prior to their arrests. Bruton does not instruct us on how to judge a confrontation clause claim where the statements involved have a nonhearsay purpose for which they are admissible against all codefendants, as well as a hearsay purpose. Indeed, the Bruton court emphasized that the statements in question were clearly inadmissible under the traditional rules of evidence. 391 U.S. at 128 n. 3, 88 S.Ct. at 1623 n. 3. Cases interpreting Bruton have found its holding inapplicable where the evidence alleged to violate Bruton principles was properly admissible against the complaining party. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); United States v. Goodman, 605 F.2d 870 (5th Cir.1979). We do not need to decide whether this evidence was inadmissible against Tyson, Thompson, and Terry (i.e., whether the prejudicial hearsay value of this evidence substantially outweighed the probative nonhearsay value of the evidence) because we find that the judge’s instruction limiting the jury’s consideration of the evidence to Carson’s case alone was sufficient. In finding the instruction in Bruton to have been insufficient, the High Court noted: [T]here are many circumstances in which this reliance [on the effectiveness of limiting instructions] is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently____ [I]n many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Nevertheless, ... there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored ... [such as] here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury" }, { "docid": "15741580", "title": "", "text": "1973). The decision to grant a severance lies within the sound discretion of the trial court, reversible only for an abuse of discretion. United States v. All State Mortgage Corp., 507 F.2d 492, 495 (7th Cir. 1974). In order to secure a severance the moving party must establish that she or he will be unable to obtain a fair trial. United States v. Crouch, 528 F.2d 625, 631 (7th Cir. 1976). Appellants have not made this showing with respect to the extra-judicial statements. The trial judge properly exercised his discretion. ■We have scrutinized the other contentions advanced by appellants and find them devoid of merit. It is appropriate to note that in its ultimate significance this case is immensely tragic not only because it involves the corruption of human beings but because the offenses found by the jury reflect a callous disregard by public servants of their moral and legal responsibilities and a sordid abuse of their public trust. Such misconduct by law enforcement officials undermines respect for the legal principles upon which the survival and growth of a free society depend. Grzywacz, Goclan and Krieshok have received a fair trial, the judgment is Affirmed. . The perjury counts against appellants charged that they falsely stated to the grand jury that they had received no bribes from businesses. . The indictment stated in pertinent part: 5. It was a part of the conspiracy that the defendants would utilize their official positions as members of the City of Madison Police Department to ask, seek, solicit and accept payments from business establishments while intending to be influenced in the performance of acts related to their employment and functions as public officers. 6. It was a further part of the conspiracy that the defendant, Ronald Grzywacz, would utilize his relationship with the office of the Sheriff of Madison County, Illinois, to ask, seek, solicit and accept payments from business establishments within the jurisdiction of the Madison County Sheriffs office. 7. It was a further part of the conspiracy that the defendants, as law enforcement officers, would be paid by individuals seeking to operate" }, { "docid": "13635564", "title": "", "text": "that a conspiracy existed and that Defendant Taylor was a member thereof. The only legal authority cited in support of said Motion is Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Plaintiff responds to said Motion contending that said Motion goes to the order of proof which is within the discretion of the trial Court. It further urges that in a conspiracy case that it is up to the trial Court to determine whether the jury may consider declarations as to any and all defendants after all the evidence is presented. The issue considered in Bruton, supra, involved a confession of one defendant given to a Government agent which inculpated his co-defendant in the crime charged. In Bruton, supra, the Court overruled its decision in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957) in which it had been held that a confession a co-defendant made after the termination of the alleged conspiracy could be used only against the declarant and under proper instructions to the jury protecting other defendants. The Court in Delli Paoli, supra, had stated: “This Court long has held that a declaration made by one conspirator, in furtherance of a conspiracy and prior to its termination, may be used against the other conspirators. However, when such a declaration is made by a conspirator after the termination of the conspiracy, it may be used only against the declarant and under appropriate instructions to the jury.\" The only matter considered in Bruton, supra, was a declaration made after the conspiracy ended and the rule concerning declarations made in furtherance of the conspiracy does not seem to be affected by Bruton, supra. This was the finding in Campbell v. United States, 415 F.2d 356 (Sixth Cir. 1969). Moreover, the Supreme Court has continued to follow the rule concerning statements made in furtherance of the conspiracy. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) the Court stated: “It is settled that in federal conspiracy trials the hearsay exception that allows evidence" }, { "docid": "15741578", "title": "", "text": "refused to grant a severance. The decision in Santiago was issued after the completion of the trial below. At trial during the testimony of the government’s first witness, Robin Young, the trial judge admonished the jury that whenever it appeared beyond a reasonable doubt that a conspiracy existed and a defendant was a member, statements knowingly made and acts committed by any person likewise found to be a co-conspirator could be considered against the defendant, but only if the statements were made in furtherance of the conspiracy and during its continuance. If not, the acts and statements could be considered only as evidence against the person making them. (Vol. 1, p. 26). The trial judge repeated these instructions to the jury at the close of trial. The court’s articulation of the rule on co-conspirator statements adhered to the law then in effect in this circuit. United States v. Santiago, 582 F.2d 1128, 1131-32 (7th Cir. 1978); see United States v. Santos, 385 F.2d 43 (7th Cir. 1967). Furthermore appellants did not object to the instructions nor did they request other limiting instructions at any time during the course of trial. Thus they have no cause to challenge those instructions on appeal. See Santiago, supra at 1136. This is true particularly in light of the fact that evidence adduced independently of the statements clearly established an active conspiracy among the three appellants and Jenny Huey. As to the Bruton issue, we do not believe that constitutional error was committed by the trial court’s refusal to grant a severance. Though damaging to appellants, the statements, when considered within the context of the other evidence, were not of a “devastating”, “crucial” or “powerfully incriminating” nature, to which Bruton largely has been limited. See Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Neither were they inherently unreliable statements as those of a coerced confession, see Bruton, supra; Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), or those produced by prosecutorial or judicial misconduct, United States v. Cogwell, 486 F.2d 823, 834 (7th Cir." }, { "docid": "23116323", "title": "", "text": "supporting this proposition, however, are inapposite. In United States v. Smith, 578 F.2d 1227 (5th Cir.1978), the court excluded the recorded conversation of a person who was not a member of the conspiracy at the time he made the statements. Id. at 1233. Appellants concede that Martin was a member of the conspiracy at the time of the conversations. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), addressed a situation where a non-testifying co-defendant’s confession was introduced into evidence against him at a joint trial, accompanied by the court’s cautionary instruction to the jury that they could consider the confession only against the confessing defendant. Despite these instructions, the Supreme Court held that the statement was inadmissible because the confession clearly implicated the nonconfessing co-defendant in the crime. We should first note that the confession in Bruton constituted hearsay evidence against the co-defendant. As we discussed above, the trial court properly admitted these tapes against Morrell and Murphy under the coconspirators’ statements exception to the hearsay rule. Although the Supreme Court has indicated that the conconspirators exception is narrower than the sixth amendment requires, see Dutton v. Evans, 400 U.S. 74, 82, 91 S.Ct. 210, 216, 27 L.Ed.2d 213 (1970) (plurality opinion), neither the Supreme Court nor this one has ever equated the two. See Gibbs, 739 F.2d at 852 (Rosenn, J., dissenting); Ammar, 714 F.2d at 255. Our examination of the record shows that appellants did not suffer any prejudice from the introduction of the statements. Indeed, we do not believe that the statements are covered by Bruton at all. Appellants are mentioned only briefly in the conversations when Alvaro and Martin discussed who they thought would be indicted. Nothing in the conversation supports an inference that either Alvaro or Martin knew that Murphy or Morrell were involved in the extortion scheme. Cf. United States v. Ruff, 717 F.2d 855, 856 (3d Cir.1983), cert. denied, 464 U.S. 1051, 104 S.Ct. 733, 79 L.Ed.2d 192 (1984) (admission involving repeated references to defendant and detailing his substantial involvement in the crime charged held Bruton statements)." }, { "docid": "5788950", "title": "", "text": "operation. Under Fed.R.Evid. 803(6), any regularly recorded memorandum made in the routine course of business is admissible to show the occurrence of a particular act or event. The memorandum supplied, noting payments made to Goins by Joyce Harlston, is such a record and substantiates payments of funds from the tavern operation to Goins in the amounts listed. The trial court has broad discretion to determine the admissibility of business records and the admittance of this record fell well within the District Court’s discretion. United States v. Page, 544 F.2d 982, 987 (8th Cir. 1976); United States v. Pfeiffer, 539 F.2d 668, 671 (8th Cir. 1976). In similar fashion several of the remaining statements to which Goins objects were admissions under the subparts of Fed.R. Evid. 801(d)(2). Other statements by Joyce Harlston were declarations against her interest. Goins has failed to establish any error under the Federal Rules of Evidence. Despite the correctness of the evidentiary rulings, Goins contends that admission of out-of-court statements of Joyce Harlston violated his right of confrontation guaranteed by the Sixth Amendment. Goins cites Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); and Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), in support of his constitutional claim. The Bruton rule precludes inadmissible hearsay against the accused, but not all extra-judicial statements are precluded under the confrontation clause. Statements of co-conspirators, as was Joyce Harlston, in conspiring with Goins to conceal his interest in the tavern operation and to evade payment of taxes on the money generated from the tavern operation by concealing Goins’ interest in and the investment of some of the bribery proceeds in that operation, would be admissible under the general rule of co-conspirators’ statements made in furtherance of the conspiracy. Harlston also conspired with Goins to thwart the grand jury investigation by giving false testimony regarding the source of funds for the tavern operation and Goins’ interest in the tavern. This court has previously held that when out-of-court" }, { "docid": "22991971", "title": "", "text": "may nonetheless offend a defendant’s Sixth Amendment rights to such an extent that his conviction must be set aside. See Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Certain principles, however, are established. Not every use of extrajudicial statements offends the Constitution. A dying declaration, for example, has traditionally been a well recognized exception to the right of confrontation; its reliability is so respected that no prejudice is seen to result from its use despite the unavailability of the declarant for cross-examination. See Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Mattox v. United States, 146 U.S. 140, 151,13 S.Ct. 50, 36 L.Ed. 917 (1892). At the other extreme, our courts have recognized that in some circumstances a declarant can be present and take the stand, but his lapse of memory or assertion of privilege can prejudicially prevent a defendant from offsetting the damaging effect of the extrajudicial statement. See Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). See also Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The relevant factual inquiry is whether, under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration. United States v. Adams, 446 F.2d 681, 683 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971). See Dutton v. Evans, supra, 400 U.S. at 88, 91 S.Ct. 210; California v. Green, supra, 399 U.S. at 161, 90 S.Ct. 1930; United States v. Menichino, 497 F.2d 935, 943 (5th Cir. 1974); United States v. Baxter, 492 F.2d 150, 177 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). The right of cross-examination of opposing witnesses is a core value in our system of justice. It is through this testing process that" }, { "docid": "5788951", "title": "", "text": "Amendment. Goins cites Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); and Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), in support of his constitutional claim. The Bruton rule precludes inadmissible hearsay against the accused, but not all extra-judicial statements are precluded under the confrontation clause. Statements of co-conspirators, as was Joyce Harlston, in conspiring with Goins to conceal his interest in the tavern operation and to evade payment of taxes on the money generated from the tavern operation by concealing Goins’ interest in and the investment of some of the bribery proceeds in that operation, would be admissible under the general rule of co-conspirators’ statements made in furtherance of the conspiracy. Harlston also conspired with Goins to thwart the grand jury investigation by giving false testimony regarding the source of funds for the tavern operation and Goins’ interest in the tavern. This court has previously held that when out-of-court statements are properly admitted under an exception to the hearsay rule, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), applies. A case-by-case analysis is required. United States v. Scholle, 553 F.2d 1109, 1119 (8th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977). As we stated there: A highly relevant consideration is the degree of prejudice imposed upon the fact-finding process by the declarant’s nonavailability. We should consider whether the out-of-court statement bears traditional indicia of reliability, whether it was crucial to the government’s case, whether the jury had an opportunity to weigh the credibility of the extrajudicial statement, and whether appropriate instructions were given by the trial judge. In adhering to these principles, this court has held that the Bruton rule is not violated and an accused’s right of confrontation is not abridged when the extrajudicial statement of a co-defendant is properly admitted as a declaration by a co-conspirator in the course of and in furtherance of the conspiracy, provided the statement satisfies the standards" }, { "docid": "16303149", "title": "", "text": "connecting petitioner to the crime for which he was convicted raises serious constitutional questions. A substantial denial of the right of cross-examination without waiver is constitutional error which no amount of showing of want of prejudice will cure. Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). “ * * * The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process’ Dutton v. Evans, 400 U.S. 74, 89 [91 S.Ct. 210, 220, 27 L.Ed.2d 213] (1970); Bruton v. United States, 391 U.S. 123, 135-137, [88 S.Ct. 1620, 20 L.Ed.2d 476] (1968). It is, indeed, ‘an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’ Pointer v. Texas, 380 U.S. 400, 405 [85 S.Ct. 1065, 1068, 13 L.Ed.2d 923] (1965)” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). The question is not whether the refusal to permit the desired cross-examination was erroneous as an evidentiary matter, but whether it deprived appellant of a fundamentally fair trial in violation of the due process clause of the Fourteenth Amendment. See, Buchalter v. New York, 319 U.S. 427, 431, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943). This court is not required to find that the trial would have reached a different result had petitioner been allowed to carry out his line of impeachment. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); United States ex rel. Washington v. Vincent, 525 F.2d 262 (2d Cir. 1975), cert. denied sub nom. Bombard, Correctional Superintendent v. Washington, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976). It is sufficient for the granting of habeas corpus relief that the denial calls into question the ultimate integrity of the fact finding process. Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969). Pursuant to New York Criminal" }, { "docid": "22163769", "title": "", "text": "for determination here is whether Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), required the district court to grant John Warren’s motion for severance after Agent Battell related at trial Thomas Warren’s comment, “We are all in this together.” Record, vol. 2, at 214. Thomas Warren made this statement during his initial conversation with Agents Battell and Wallace, just after he, Thomas Warren, had produced the three pistols. We hold that the admission of this statement did not violate the rule of Bruton. Bruton established that a codefendant’s confession that implicates the defendant is inadmissible in a joint trial if the codefendant refuses to take the stand. Implicit in the holding in Bruton is that the codefendant’s confession would have been inadmissible against the defendant in a separate trial. See id., 391 U.S. at 128 n. 3, 88 S.Ct. at 1623; United States v. Archibold-Newball, 554 F.2d 665, 677 (5th Cir.), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1977); United States v. Scholle, 553 F.2d 1109, 1119 (8th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977). Although we recognize that it is not true that all evidence admissible in a separate trial under exceptions to the hearsay rule necessarily comports with sixth amendment confrontation requirements, see Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970), it is established that statements that are admissible under the coconspirator exception to the hearsay rule do not run afoul of Bruton. United States v. Archibold-Newball, 554 F.2d at 677; United States v. Scholle, 553 F.2d at 1109, 1119-20; Park v. Huff, 506 F.2d 849, 860 (5th Cir.) (en banc), cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975); McGregor v. United States, 422 F.2d 925, 926 (5th Cir. 1970); see Dutton v. Evans, 400 U.S. at 85-88, 91 S.Ct. at 218-19. Fed.R.Evid. 801(d)(2)(E) makes admissible against a party “a statement by a coconspirator of [that] party during the course and in furtherance of the conspiracy.” See Krulewitch v. United States," } ]

[ { "docid": "19400622", "title": "", "text": "his conviction was not for an \"aggravated felony\" by proving that his conduct fell within § 841(b)(4). Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 701-702 (2012). Petitioner, for whatever reason, availed himself only of the opportunity to show that his conviction had involved a small amount of marijuana and did not present evidence-or even contend-that his offense had not involved remuneration. Administrative Record 16-26, 37. As a result, I think we have no alternative but to affirm the decision of the Court of Appeals, which in turn affirmed the BIA. Section 16-13-31(c) (Supp.2012) increases the punishment for trafficking in marijuana, while § 16-13-2(b) (2011) decreases the punishment for simple possession of 1 ounce or less of marijuana. Neither provision is applicable to Moncrieffe's offense of possession of marijuana with intent to distribute. The Court correctly points out that Moncrieffe was sentenced pursuant to § 16-13-2(a) because he was a first-time offender. Ante, at 1683. That provision does not alter the felony status of the offense. Rather, it gives courts discretion to impose probation instead of imprisonment and to do so without entering a conviction. As the majority recognizes, petitioner has waived any argument that he was not convicted for purposes of the Immigration and Nationality Act. Ante, at 1683, n. 2. See 8 U.S.C. § 1227(a)(2)(A)(iii) (providing that aliens convicted of an \"aggravated felony\" after admission are deportable); § 1229b(a)(3) (providing that aliens convicted of an \"aggravated felony\" are ineligible for cancellation of removal); § 1101(a)(43)(B) (defining \"aggravated felony\" as \"illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in [18 U.S.C. § 924(c) ] )\"); 18 U.S.C. § 924(c)(2) (defining \"drug trafficking crime\" as \"any felony punishable under the [CSA]\"). The Court defends its interpretation of 21 U.S.C. § 841(a), (b)(4) by arguing that Carachuri-Rosendo v. Holder, 560 U.S. ----, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), rejected any recourse to a \"hypothetical approach\" for determining how a criminal prosecution likely would have proceeded, see ante, at 1688, and that is true enough. But, as discussed above, see n. 2, supra," } ]

[ { "docid": "22894147", "title": "", "text": "the Court did not even mention Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)). Accordingly, I dissent. Our criminal and immigration laws are not as simple as the majority opinion implies. Accordingly, I first describe the purpose of § 16 and how courts have interpreted the statute, before reviewing the Supreme Court’s decision in Johnson, and concluding that the twin concerns expressed by the Supreme Court in Johnson do not infect § 16(b). I. Title 18 U.S.C. § 16 contains two distinct definitions of “crime of violence,” with distinct purposes, effects, and judicial pedigrees. Subsection (a) defines “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” (emphasis added). Subsection (b) sets forth a distinct definition that covers offenses that are not within subsection (a)’s definition. It states that “crime of violence” means “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” It follows that an offense that is a “crime of violence” under subsection (a) also meets the criteria in subsection (b), but that subsection (b) covers offenses that do not meet the criteria in subsection (a). These subsections serve different functions with different consequences. An appreciation of the differences between the subsections and their roles informs my understanding of the Supreme Court’s opinions in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). Although the terms “crime of violence,” “violent felony,” and “aggravated felonies” may appear to be synonymous to a lay person, courts have recognized that, as used in their statutory contexts, they are distinct terms .of art covering distinct acts with different legal consequences. A. In Descamps, the Government sought an enhancement of Descamps’ sentence under the ACCA, 18 U.S.C. § 924(e), on the basis that his" }, { "docid": "18086399", "title": "", "text": "60 (2011). When the Supreme Court decided Johnson, it expressly overruled this precedent. 135 S.Ct. at 2563. Shortly thereafter, Defendant sought this Court’s leave to file supplemental briefing and challenge his sentence under the ACCA. We therefore conclude that Defendant has properly raised his ACCA claim. 2. Turning to the merits, the question before us is whether Defendant’s West Virginia burglary convictions can still meet the definition of an ACCA violent felony, despite the Supreme Court’s invalidation of the residual clause. Specifically, we consider whether Defendant’s convictions for burglary under W. Va. Code § 61-3-ll(a) qualify as “burglary” within the meaning of the ACCA. See 18 U.S.C. § 924(é)(2)(B)(ii). Because Defendant did not challenge his ACCA designation before the district court, we review for 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). Under the plain error standard, Defendant must show that (1) there was an error; (2) the error is plain; and (3) the error affects substantial rights. Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016); Plano, 507 U.S. at 732, 113 S.Ct. 1770. We may then exercise our discretion to correct the error if it “ ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Molina-Martinez, 136 S.Ct. at 1343 (quoting Plano, 507 U.S. at 736, 113 S.Ct. 1770). To determine whether a prior conviction qualifies as an ACCA enumerated offense, courts employ what is known as “the categorical approach.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). Under this approach, the court “focus[es] solely on whether the elements of the crime of conviction sufficiently match the elements of [the listed] generic [crime], while ignoring the particular facts of the case.” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). An offense’s federal generic definition may differ from the offense’s state-law definition. Thus, in applying the categorical approach, a state conviction will qualify as an enumerated offense, and thus a predicate crime" }, { "docid": "22505626", "title": "", "text": "saw a hand in the southeast bedroom window, we cannot say that it was plainly unreasonable for Evans to have returned to Ford's bedroom immediately after the arrest. III. Ford also argues for the first time on appeal that he should not have been sentenced as an Armed Career Criminal because his convictions for three burglaries, assault with a dangerous weapon, and two drug violations are not predicate offenses under the Armed Career Criminal Act (\"ACCA\"). Although Ford did not raise an objection to his classification as an Armed Career Criminal at sentencing, he states that his attorney advised him that objecting would be useless because of his burglary convictions-even though his sentencing took place after the Supreme Court held in Mathis v. United States that convictions under Iowa's burglary law are not ACCA predicate offenses. --- U.S. ----, 136 S.Ct. 2243, 2246, 195 L.Ed.2d 604 (2016). As such, we conclude that he did not intend to waive this issue, hold that his burglary convictions are not ACCA predicate offenses, and consider his assault and drug convictions under a plain-error standard of review. The ACCA requires a 15-year mandatory minimum sentence for a defendant convicted of being a felon in possession of a firearm when they have previously been convicted of three serious drug offenses or violent felonies. 18 U.S.C. § 924(e)(1). We look to the generic version of Ford's crimes to determine whether they are ACCA predicate offenses. Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If a statute \"sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate.\" Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). To determine whether Ford's crimes of conviction sweep more broadly than the generic offenses, we take the \"categorical approach.\" Id. When a statute contains alternatives, our job is first to determine whether they are divisible elements or merely alternative means. Mathis , 136 S.Ct. at 2256. \"Elements\" must be proven to sustain a conviction, while \"means\" are \"brute" }, { "docid": "12030531", "title": "", "text": "beginning with Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and culminating in the Supreme Court’s recent decision in Mathis v. United States, 579 U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Both cases involved sentences enhanced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924, based on the defendant’s prior convictions in state courts. In each instance, the sentencing courts were faced with determining whether the prior convictions were for “violent felonies.” The analysis employed in these cases also applies to the determination of whether a prior conviction qualifies as a predicate offense for the purposes of the career-offender enhancement under USSG § 4B1.2(a)(2). See United States v. Bartee, 529 F.3d 357, 363 (6th Cir. 2008) (holding that “parallel provisions in the definitions of a ‘violent felony* under the ACCA and a ‘crime of violence’ under [the Guidelines] should be interpreted in a consistent manner”). In the ACCA framework, the central inquiry is whether the elements of the offense for which a criminal defendant was convicted “sufficiently match” the elements of the so-called “generic offense” that is a crime of violence. Mathis, 136 S.Ct. at 2248. This analysis employs the categorical approach—if the elements of the statute of conviction are the same as or narrower than the generic form of the offense, it qualifies as a predicate offense. If not, regardless of the actual conduct of the defendant that led to conviction, it is not a predicate offense. Id. at 2247-48. In Mathis, the Court noted that a statute may define a crime with a single set of elements, or it may define multiple crimes by listing multiple, alternative elements dis-junctively. In the latter case, the statute is said to be “divisible.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013), In dealing with a divisible statute, a sentencing court must determine which of the alternative elements are “integral” to the defendant’s conviction in order to decide which crime was the offense of conviction. In aid of this determination, the sentencing court may invoke" }, { "docid": "10139305", "title": "", "text": "of an accomplice. “[0]ur focus on the minimum conduct criminalized by the state statute” compels this assumption. Moncrieffe, 569 U.S. at 191, 133 S.Ct. 1678. Accordingly, the only question before us is whether the strict liability aspect of New York first degree robbery causes the statute to “sweep too broadly,” criminalizing conduct that the ACCA does not penalize. Descamps, 133 S.Ct. at 2283 III. The Armed Career Criminal Act The ACCA imposes a fifteen-year mandatory minimum sentence on individuals who are convicted of a violation of 18 U.S.C. § 922(g), and who have “three previous convictions ... for a violent felony.” 18 U.S.C. § 924(e)(1). A “violent felony” is defined as any crime punishable by imprisonment for a term exceeding one year ... that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is [one of several enumerated offenses], or otherwise involves conduct that presents a serious potential risk of physical injury to another .... Id. § 924(e)(2)(B). This case concerns only 18 U.S.C. § 924(e)(2)(B)(i), which is known as the “force,” or “elements” clause. Two Supreme Court decisions interpreting the ACCA’s elements clause provide particular guidance to us here. The first is Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In Leocal, the Court addressed the “crime of violence” provision at 18 U.S.C. § 16, which uses language identical to the elements clause of the “violent felony” definition in 18 U.S.C. § 924(e)(2)(B)(i). Leocal involved a conviction under a Florida statute criminalizing driving under the influence of alcohol (DUI) and causing serious bodily injury that did not have a mens rea requirement. The government argued in Leocal that 18 U.S.C. § 16 does not re quire a predicate offense to have a mens rea requirement, and that the DUI offense was therefore a crime of violence under the federal statute. 543 U.S. at 9, 125 S.Ct. 377. The Court held, however, that the elements clause of 18 U.S.C. § 16 “most naturally suggests a higher degree of intent than negligent or merely" }, { "docid": "6354346", "title": "", "text": "607 (1990). . Id. at 578, 110 S.Ct. 2143. . Id. at 602, 110 S.Ct. 2143. . Id. at 600-01, 110 S.Ct. 2143. . Id. at 601, 110 S.Ct. 2143. . Id. at 601-02, 110 S.Ct 2143. . Id. at 578, 110 S.Ct 2143. . Jones v. United States, 526 U.S. 227, 243 n.6, 119 S.Ct 1215, 143 L,Ed.2d 311 (1999); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L,Ed.2d 435 (2000). . 544 U.S. 13, 24, 125 S.Ct 1254, 161 L.Ed.2d 205 (2005) (citing Jones, 526 U.S. at 243 n.6, 119 S.Ct. 1215, and Apprendi, 530 U.S. at 490, 120 S.Ct, 2348). . 18 U.S.C. § 924(e)(2)(B). . Taylor, 495 U.S. at 600-02, 110 S.Ct 2143. . See, e.g., Johnson v. United States, 559 U.S. 133, 136-38, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (applying a categorical approach under 18 U.S.C. § 924(e)(2)(B)(i)); Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (describing the application of the categorical approach to determine whether a particular crime is an “aggravated felony\" under the Immigration and Nationality Act); Leocal v. Ashcroft, 543-U.S. 1, 9-11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (applying the categorical approach under 18 U.S.C. § 16, defining a “crime of violence”). But see Nijhawan v. Holder, 557 U.S. 29, 36, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (statutory provision defining aggravated felony as an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” called for factual inquiry regarding amount of loss), . Taylor, 495 U.S. at 602, 110 S.Ct. 2143. . See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). . Id. at 2285. . Shepard v. U.S., 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). . 18 U.S.C. § 924(c)(3)(A). . Id. . 18 U.S.C. § 1951(b)(1) (emphasis added). . See Moncrieffe, 133 S.Ct. at 1684. . 18 U.S.C. § 924(c)(4). . Faretta, 422 U.S. 806, 95 S.Ct. 2525 . United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006)." }, { "docid": "19456687", "title": "", "text": "(\"The Court acknowledges that it erred in relying on the rule of lenity ....\"). The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742(b)(2) and 28 U.S.C. § 1291. We exercise plenary review over the District Court's legal determination that Ramos is not a career offender. United States v. Chapman , 866 F.3d 129, 131 (3d Cir. 2017). See U.S.S.G. § 4B1.1(a). It is undisputed that Ramos's 1999 state court drug conviction qualifies as a career offender predicate \"controlled substance offense.\" See U.S.S.G. § 4B1.2(b). U.S.S.G. § 4B1.1(a) ; see United States v. Graves , 877 F.3d 494, 501 (3d Cir. 2017). U.S.S.G. § 4B1.2(a). See United States v. Wilson , 880 F.3d 80, 84 (3d Cir. 2018). Because we hold that Ramos's aggravated assault conviction is a crime of violence under the elements clause, we do not address the enumerated offenses clause. Wilson , 880 F.3d at 83 (internal quotation marks omitted); Chapman , 866 F.3d at 133 (quoting Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ); see United States v. Robinson , 844 F.3d 137, 141 (3d Cir. 2016) (explaining the various rationales for the categorical approach). U.S.S.G. § 4B1.2(a)(1) ; see Chapman , 866 F.3d at 134 (quoting United States v. Brown , 765 F.3d 185, 189 (3d Cir. 2014) ); see also United States v. Castleman , --- U.S. ----, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014). Chapman , 866 F.3d at 134. Brown , 765 F.3d at 189 (citing Descamps , 570 U.S. at 261, 133 S.Ct. 2276 ); Chapman , 866 F.3d at 134 ; see Mathis , 136 S.Ct. at 2251-52. Mathis , 136 S.Ct. at 2251-52 ; Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; see Mathis , 136 S.Ct. at 2253 (explaining that the categorical approach \"treats such facts as irrelevant\"). Moncrieffe , 569 U.S. at 191," }, { "docid": "21808868", "title": "", "text": "not a violent felony under the enumerated offenses clause because assault is not included in that list of crimes. And third, he argued that a conviction under the Georgia aggravated assault statute does not now qualify as a violent felony under the elements clause. In making that argument about the elements clause he relied heavily on the Supreme Court’s 2013 decision in Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which is one in a line of Supreme Court decisions describing how federal courts should determine whether an offense qualifies as a predicate offense under the ACCA’s enumerated offenses and elements clauses. See Mathis v. United States, 579 U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); Descamps, 133 S.Ct. 2276; Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The district court denied Beemaris § 2255 motion as untimely and, alterna tively, on the merits. It determined that Beeman’s § 2255 motion was untimely because he filed it more than a year after his judgment of conviction became final and the motion failed to raise a true Johnson claim, instead “at its core, rel[ying] on Descamps.” As an alternative ground, the court determined that even under the Des-camps decision, a Georgia conviction for aggravated assault qualifies as a violent felony under the ACCA’s elements clause. II. DISCUSSION A. The Time Bar “We review de novo the district court’s determination that a § 2255 motion to vacate is time-barred.” Drury v. United States, 507 F.3d 1295, 1296 (11th Cir. 2007). The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a one-year statute of limitations to bring a § 2255 motion. 28 U.S.C. § 2255(f). The limitations period begins to run on the latest of four possible triggering dates. See id. Typically, the applicable triggering date is “the date on which the judgment of conviction becomes final.” Id. § 2255(f)(1). Beeman cannot rely on that limitations period, however, because he filed his § 2255 motion almost" }, { "docid": "22502005", "title": "", "text": "310, 196 L.Ed.2d 209 (2016). Herrold v. United States , --- U.S. ----, 137 S.Ct. 310, 196 L.Ed.2d 209 (2016). 685 Fed.Appx. 302, 303 (5th Cir. 2017) (per curiam). Id. 18 U.S.C. § 924(e)(1) (2016). 18 U.S.C. § 924(e)(2)(B)(ii). See Taylor v. United States , 495 U.S. 575, 588-89, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (\"Congress intended that the enhancement provision [of the ACCA] be triggered by crimes having certain specified elements, not by crimes that happened to be labeled 'robbery' and 'burglary' by the laws of the State of conviction.\"). Tex. Penal Code § 30.02(a) (2017). Mathis v. United States , --- U.S. ----, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Mathis , 136 S.Ct. at 2248. Id. at 2249. Id. at 2256. Id. Id. Id. Id. Id. Id. at 2256-57 (quotation omitted). Id. at 2257. Id. See Shepard v. United States , 544 U.S. 13, 21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (describing \"Taylor 's demand for certainty\"). See United States v. Perlaza-Ortiz , 869 F.3d 375, 380 (5th Cir. 2017) (\"In such uncertain circumstances, the Government has not shown that the statute is divisible.\"). It does not contain an illustrative list; it does not carry different punishments; and it does not explicitly state which facts must be charged and which need not be. See Mathis , 136 S.Ct. at 2256. See, e.g. , Stanley v. State , No. 03-13-00390, 2015 WL 4610054, at *7 (Tex. App.-Austin July 30, 2015, pet. ref'd) (\"The unauthorized entry with intent to commit a felony [under Texas Penal Code § 30.02(a)(1) ] or the unauthorized entry and the commission (or attempted commission) of a felony [under Texas Penal Code § 30.02(a)(3) ] were simply alternative methods of committing the same burglary offense. Hence, the trial court did not err by denying appellant's requested jury unanimity instruction as no such unanimity was required.\"); Martinez v. State , 269 S.W.3d 777, 783 (Tex. App.-Austin 2008, no pet.) (rejecting unanimity challenge between Texas Penal Code §" }, { "docid": "21808867", "title": "", "text": "its finding that the conviction qualified was based on the elements clause or the residual clause or both. Beeman appealed his convictions but not his sentences, and-on July 8, 2010, this Court affirmed. United States v. Beeman, 386 Fed.Appx. 827, 835 (11th Cir. 2010). On June 26, 2015, the United States Supreme Court held that the ACCA’s residual clause is unconstitutionally vague. Johnson, 135 S.Ct. at 2563. And in April 2016, the Court held that the Johnson decision is retroactively applicable to cases on collateral review. Welch v. United States, 578 U.S. -, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). On June 7, 2016, Beeman filed his § 2255 motion, attacking his ACCA-en-hanced sentences for his firearm and ammunition offenses. His argument proceeded in three parts. First, he contended that the Johnson decision invalidated his ACCA sentences because when he was sentenced in 2009 his Georgia conviction for aggravated assault would have qualified as a violent felony under the residual clause of the ACCA. Second, he pointed out that his aggravated assault conviction was not a violent felony under the enumerated offenses clause because assault is not included in that list of crimes. And third, he argued that a conviction under the Georgia aggravated assault statute does not now qualify as a violent felony under the elements clause. In making that argument about the elements clause he relied heavily on the Supreme Court’s 2013 decision in Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which is one in a line of Supreme Court decisions describing how federal courts should determine whether an offense qualifies as a predicate offense under the ACCA’s enumerated offenses and elements clauses. See Mathis v. United States, 579 U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); Descamps, 133 S.Ct. 2276; Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The district court denied Beemaris § 2255 motion as untimely and, alterna tively, on the merits. It determined that Beeman’s" }, { "docid": "19492975", "title": "", "text": "Cir. 2016), and setting aside the \"timeliness and other procedural\" objections that the government has waived, we conclude that Brown's second-degree-burglary conviction was not a violent felony. II. ACCA includes a list of offenses that qualify as \"violent felon[ies].\" See 18 U.S.C. § 924(e)(2)(B)(ii). One of the enumerated offenses is \"burglary,\" but ACCA does not define burglary or specify its elements. See id. In the absence of a definition, the Supreme Court has interpreted ACCA's enumerated-offenses clause as incorporating a \"generic, contemporary meaning\" of each listed offense that is \"independent of the labels employed by the various States' criminal codes.\" Taylor v. United States (Taylor I ), 495 U.S. 575, 592, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). To determine whether Brown's conviction counts as generic burglary, \"we focus on the elements of the crime\"-as opposed to the actual facts of what he did-and \"compare [them] with those of the generic enumerated offense.\" United States v. Schneider , 905 F.3d 1088, 1093 (8th Cir. 2018). If Missouri's 1977 definition of second-degree burglary is \"the same as, or narrower than,\" generic burglary, then Brown's conviction counts. Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; see also Mathis v. United States , --- U.S. ----, 136 S. Ct. 2243, 2247, 195 L.Ed.2d 604 (2016). If not, then Brown does not have three predicate convictions, and we must reverse and remand for resentencing. See Mathis , 136 S. Ct. at 2248. The Supreme Court has defined \"generic\" burglary as \"an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.\" Taylor I , 495 U.S. at 598, 110 S.Ct. 2143 ; see also United States v. Stitt , --- U.S. ----, 139 S. Ct. 399, 403-04, 202 L.Ed.2d 364 (2018) (including \"a structure or vehicle that has been adapted or is customarily used for overnight accommodation\" within the generic definition of burglary). The statute in effect at the time of Brown's conviction prohibited breaking and entering any building, the breaking and entering of which" }, { "docid": "19456688", "title": "", "text": "570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ); see United States v. Robinson , 844 F.3d 137, 141 (3d Cir. 2016) (explaining the various rationales for the categorical approach). U.S.S.G. § 4B1.2(a)(1) ; see Chapman , 866 F.3d at 134 (quoting United States v. Brown , 765 F.3d 185, 189 (3d Cir. 2014) ); see also United States v. Castleman , --- U.S. ----, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014). Chapman , 866 F.3d at 134. Brown , 765 F.3d at 189 (citing Descamps , 570 U.S. at 261, 133 S.Ct. 2276 ); Chapman , 866 F.3d at 134 ; see Mathis , 136 S.Ct. at 2251-52. Mathis , 136 S.Ct. at 2251-52 ; Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; see Mathis , 136 S.Ct. at 2253 (explaining that the categorical approach \"treats such facts as irrelevant\"). Moncrieffe , 569 U.S. at 191, 133 S.Ct. 1678 (internal quotation marks omitted). See id. Descamps , 570 U.S. at 257, 262, 133 S.Ct. 2276 (explaining that a statute is divisible if it \"comprises multiple, alternative versions of the crime\"). Robinson , 844 F.3d at 143 (internal quotation marks omitted). Brown , 765 F.3d at 189-90 (quoting Taylor , 495 U.S. at 602, 110 S.Ct. 2143 ; Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). Descamps , 570 U.S. at 263-64, 133 S.Ct. 2276 ; see Mathis , 136 S.Ct. at 2256. Mathis , 136 S.Ct. at 2253-54. 2010 PSR & 2017 PSR ¶ 38. 18 Pa. C.S. § 2702(a)(1)-(6) (1998); see id. § 2301 (defining \"Deadly weapon,\" \"Bodily injury,\" and \"Serious bodily injury\"); see also id. § 901(a) (defining \"attempt\"). Because, \"[u]nder the categorical approach, we look to the elements of the statute as it existed at the time of the prior conviction,\" United States v. Dahl , 833 F.3d 345, 355 (3d Cir. 2016), we confine our analysis to the" }, { "docid": "3288740", "title": "", "text": "the enumerated offenses in § 924(e)(2)(B)(ii), the focus turns to the elements clause in § 924(e) (2) (B) (i). To determine if a prior conviction qualifies as a violent felony under the ACCA, we apply the categorical approach, focusing on the elements of the crime of conviction, not the .underlying facts. Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). The question we must answer then is whether Colorado’s robbery statute “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See § 924(e)(2)(B)®. This inquiry requires application of both federal law and Colorado state law. Federal law defines the meaning of the phrase “use, attempted use, or threatened use of physical force” in § 924(e)(2)(B)®. Johnson v. United States (Johnson I), 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“The meaning of ‘physical force’ in § 924(e)(2)(B)® is a question of federal law....”); Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (applying federal law to define “use”). And state law defines the substantive elements of the crime of conviction. Johnson I, 559 U.S. at 138, 130 S.Ct. 1265 (“We are ... bound by the Florida Supreme Court’s interpretation of state law, including its determination of the elements of [the crime of conviction].”). Harris limits his challenge to the elements clause’s “physical force” component. A two-step inquiry resolves whether Colorado’s robbery statute requires physical force as that term is used in the ACCA: we must identify the minimum “force” required by Colorado law for the crime of robbery and then determine if that force categorically fits the definition of physical force. See Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (“Because we examine what the state conviction necessarily involved ... we, must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” (alterations in original) (emphasis added)). The Supreme Court has reminded" }, { "docid": "6354359", "title": "", "text": "violence under Section 924(c)(3). In conclusion, I concur in the judgment of the majority and will affirm Robinson’s Section 924(c) conviction. . 18 U.S.C. § 1951(a). . 18 U.S.C. § 924(c). . Maj. Op. at 143-44. .See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); United States v. Hill, 832 F.3d 135 (2d Cir. 2016); United States v. Howard, 650 Fed.Appx. 466 (9th Cir. 2016) (unpublished). . 495 U.S. 575, 110 S.Ct 2143, 109 L.Ed.2d 607 (1990). . Id. at 600, 110 S.Ct. 2143. . 18 U.S.C. § 924(e)(1). . Taylor, 495 U.S. at 600, 110 S.Ct. 2143. . Id. at 601, 110 S.Ct. 2143. . Id. . S. Rep. No. 98-225, at 312-13 (1983)(federal crimes such as the bank robbery statute and assault on federal officer statute are specifically discussed as prime examples of \"crimes of violence”). . Taylor, 495 U.S. at 601, 110 S.Ct. 2143. . Maj. Op. at 142-43. . See Hill, 832 F.3d at 139-44 (holding that Hobbs Act robbery is categorically a crime of violence under Section 924(c)); Howard, 650 Fed.Appx. at 468 (same). . 136 S.Ct. at 2248. . Id. at 2249. . Id. (citation omitted). The Supreme Court explains this phenomenon in the ACCA context, using the following illustration: A state burglary law prohibits \" 'the lawful entry or the unlawful entry' of a premises with intent to steal, so as to create two different offenses.... If the defendant were convicted of the offense with unlawful entry as an element, then his crime of conviction would match generic burglary and count as an ACCA predicate; but, conversely, the conviction would not qualify if it were for the offense with lawful entiy as an element.” Id. . 136 S.Ct. at 2249. . Maj. Op. at 142 (quoting Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013)); see also United States v. Brown, 765 F.3d 185, 190 (3d Cir. 2014) (\"It bears repeating that the modified categorical approach is 'applicable only to divisible statutes.' ”). . 18 U.S.C. § 1951(a). . Appellant Br." }, { "docid": "21818643", "title": "", "text": "form of the offense is not a serious drug offense. Instead, we assume that he is right but conclude that he still cannot satisfy the plain error standard because he cannot establish that the Massachusetts traffick ing statute is clearly “indivisible.” We pause for a moment to explain what that means. When determining whether a prior conviction qualifies as a predicate offense under the ACCA, we do not look at the specific facts of the defendant’s prior conviction. Instead, we use a categorical approach, where we classify crimes as ACCA predicates based on their legal definitions, rather than the facts of the defendant’s particular conviction. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 2251-52, 195 L.Ed.2d 604 (2016); Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). The categorical approach is imposed in part by the language of the ACCA, see Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2562, 192 L.Ed.2d 569 (2015); Shepard v. United States, 544 U.S. 13, 19, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and in part by the Sixth Amendment concerns that would arise if the imposition of the ACCA’s mandatory minimum sentence were based on the actual facts underlying prior convictions as found by the sentencing judge, see Shepard, 544 U.S. at 24, 125 S.Ct. 1254; Taylor, 495 U.S. at 601, 110 S.Ct. 2143; United States v. Faust, 853 F.3d 39, 50 (1st Cir. 2017) (citing Mathis, 136 S.Ct. at 2252, and Descamps, 133 S.Ct. at 2288). The categorical approach proceeds in different ways for different portions of the ACCA. To determine whether a conviction for a crime falls within the “force clause” or the “enumerated offense clause” of the violent felony definition, see United States v. Starks, 861 F.3d 306, 314 (1st Cir. 2017) (defining these terms), courts ask whether there is any (realistic) way of committing the crime that does not satisfy the force clause or the elements of the generic version of the" }, { "docid": "22894148", "title": "", "text": "against the person or property of another may be used in the course of committing the offense.” It follows that an offense that is a “crime of violence” under subsection (a) also meets the criteria in subsection (b), but that subsection (b) covers offenses that do not meet the criteria in subsection (a). These subsections serve different functions with different consequences. An appreciation of the differences between the subsections and their roles informs my understanding of the Supreme Court’s opinions in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). Although the terms “crime of violence,” “violent felony,” and “aggravated felonies” may appear to be synonymous to a lay person, courts have recognized that, as used in their statutory contexts, they are distinct terms .of art covering distinct acts with different legal consequences. A. In Descamps, the Government sought an enhancement of Descamps’ sentence under the ACCA, 18 U.S.C. § 924(e), on the basis that his California conviction for burglary was a “violent felony.” Descamps, 133 S.Ct. at 2281-82. In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court had established a “rule .for determining when a defendant’s prior conviction counts as one of ACCA’s enumerated predicate offenses.” Descamps, 133 S.Ct. at 2283. In other words, Taylor focused on whether the state crime and the enumerated federal predicate offense had the same elements. In Taylor, the Court first determined the federal definition of burglary, and then considered How courts were to determine whether a state conviction met that definition. The Court, concerned with the substantive and practical problems of determining that the state conviction met the criteria for a federal offense, set forth a “categorical approach” instructing sentencing courts to look at the statutory definitions and not to the particular facts underlying a conviction. Descamps, 133 S.Ct. at 2283 (citing Taylor, 495 U.S. at 600, 110 S.Ct. 2143). In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)," }, { "docid": "9659087", "title": "", "text": "rule, the Court will proceed to considér it on the merits. Defendant argues that his ACCA sentence is unlawful because, without the residual clause, his prior convictions for Maryland Robbery and DC ADW are not violent felonies under the ACCA. The government disagrees, arguing that both offenses are covered by the “elements clause.” As explained infra, the Court concludes that the Maryland Robbery is not a violent felony under the elements clause. As that is a sufficient basis for finding his ACCA sentence to be unlawful, it is unnecessary to decide whether the DC ADW is a qualifying prior conviction. To determine whether a prior conviction qualifies as a “violent felony” under the elements clause, courts use what is known as the “categorical approach.” Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). The “categorical approach” means that courts look at the “elements” of the generic offense rather than the particular facts underlying a conviction. Id.; Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2253, 195 L.Ed.2d 604 (2016); United States of America v. Sheffield, 832 F.3d 296, 314 (D.C. Cir. 2016) (courts look at “ ‘how the law defines the offense and not in terms of how an individual defendant might have committed it on a particular occasion’ ” (quoting Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008))). Thus, irrespective of a defendant’s actual criminal conduct, a prior conviction will qualify as a violent felony under the elements clause only if the generic offense “has an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e). In addition, “it is not true that whatever a state happens to mean by ‘force’ will invariably correspond to the meaning of that term ... [in] § 924(e).” United States v. Mathis, 963 F.2d 399, 409 (D.C. Cir. 1992). Rather, “[t]he meaning of “physical force” in § 924(e)(2)(B)(i) is a question of federal law, not state law,” and, as previously noted, the Supreme Court has held that “the" }, { "docid": "10851456", "title": "", "text": "criminalized was not encompassed by the generic illicit drug trafficking offense. Id. at 1684-86. Not long after Moncrieffe, the Supreme Court clarified that federal courts construing state criminal statutes for purposes of deciding whether the state criminal offense constituted a violent felony under ACCA must “focus on the elements, rather than the facts, of a crime.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013). In Descamps, the Court expressly left unanswered “the question whether, in determining a crime’s elements, a sentencing court should take account not only of the relevant statute’s text, but of judicial rulings interpreting it.” Id. at 2291. Our Court, noting that “[t]he Descamps decision did nothing to undermine the holding of our Rosales-Bruno decision,” continued to rely on state judicial rulings interpreting state criminal statutes when deciding whether those crimes constituted violent felonies. United States v. Howard, 742 F.3d 1334, 1346 n.5 (11th Cir. 2014); see United States v. Lockett, 810 F.3d 1262, 1270 (11th Cir. 2016) (“What elements South Carolina prosecutors are required to prove for a burglary conviction is a question of South Carolina law. And so we look to the state’s courts to answer this question.” (citing Howard, 742 F.3d at 1346)). This year, the Supreme Court decided Mathis v. United States, which demonstrates that Rosales-Bruno was rightly decided and should be followed in cases like Mr. Golden’s. — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In Mathis, the Supreme Court answered the question left open in Descamps, instructing federal courts seeking to determine a state crime’s elements to follow any “state court decision” that “definitively answers that question.” Id. at 2256. Mathis is not clearly on point with Turner and Mr. Golden’s case because it considered a different definition of violent felony — the one found in the “enumerated crimes” rather than the “elements” clause. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (noting that an intervening Supreme Court decision must be “clearly on point” to abrogate a prior panel decision of this Court (internal quotation marks omitted)). But" }, { "docid": "10139302", "title": "", "text": "of conduct made criminal by the state statute falls within the scope of activity that the federal statute penalizes. United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006). In this case, we therefore must inquire whether Stuckey’s prior first degree robbery convictions categorically qualify as “violent felonies” as defined by 18 U.S.C. § 924(e)(2)(B). This inquiry requires a two-step analysis. We must first identify the “elements of the statute forming the basis of the defendant’s conviction.” Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In doing so, we examine what is “the minimum criminal conduct necessary for conviction under [that] particular [state]' statute,” Acosta, 470 F.3d at 135, mindful that “there must be a ‘realistic probability ... that the State would apply its statute to conduct’ ” that constitutes the - minimal criminal activity necessary for a conviction, Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). Second, we then compare the minimum conduct necessary for a state conviction with the conduct that constitutes a “violent felony” under the ACCA. 18 U.S.C. § 924(e)(2)(B). If the state statute “sweeps more broadly”—i.e., it punishes activity that the federal statute does not encompass—then the state crime cannot count as a predicate “violent felony” for the ACCA’s fifteen-year mandatory minimum. Descamps, 133 S.Ct. at 2283. In some instances, an additional step is réquired because a “statute[ ] .. •. ha[s] a more complicated • (sometimes called ‘divisible’) structure .... ” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). These statutes “list elements in the alternative, and thereby define multiple crimes.” Id. at 2249. When a court encounters a statute that might be violated using alternative elements, a court may “look[ ] to- a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to -determine what crime, with what elements, a defendant was. convicted of.” Id. The court -then applies; the categorical" }, { "docid": "6354347", "title": "", "text": "an “aggravated felony\" under the Immigration and Nationality Act); Leocal v. Ashcroft, 543-U.S. 1, 9-11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (applying the categorical approach under 18 U.S.C. § 16, defining a “crime of violence”). But see Nijhawan v. Holder, 557 U.S. 29, 36, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (statutory provision defining aggravated felony as an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” called for factual inquiry regarding amount of loss), . Taylor, 495 U.S. at 602, 110 S.Ct. 2143. . See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). . Id. at 2285. . Shepard v. U.S., 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). . 18 U.S.C. § 924(c)(3)(A). . Id. . 18 U.S.C. § 1951(b)(1) (emphasis added). . See Moncrieffe, 133 S.Ct. at 1684. . 18 U.S.C. § 924(c)(4). . Faretta, 422 U.S. 806, 95 S.Ct. 2525 . United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006). . Brownlee, 454 F.3d at 137. . United States v. Lawrence, 349 F.3d 109, 115 (3d Cir. 2003). . Reese v. Fulcomer, 946 F.2d 247, 260 (3d Cir. 1991). . United States v. Burnett, 773 F.3d 122, 130 (3d Cir. 2014). . United States v. Rose, 538 F.3d 175, 182 (3d Cir. 2008) . United States v. Peppers, 302 F.3d 120, 127 (3d Cir. 2002). . U.S. Const. Amend. VI. . Peppers, 302 F.3d at 129. . 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). . Id. at 835, 95 S.Ct. 2525; see Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (holding that a waiver of constitutional rights must be knowing and intelligent). . Peppers, 302 F.3d at 132 (internal quotations and citations omitted). . See id. at 133 (noting that a proper Faretta inquiry requires “specific forewarning of the risks that foregoing counsel’s trained representation entails.”). . Id. at 132. FUENTES, Circuit Judge, concurring in part and concurring in the judgment. After a jury trial," } ]

[ { "docid": "22203478", "title": "", "text": "factors under the Mississippi capital sentencing system and their use in the Georgia system in Godfrey. In our view, however, those differences could not have been considered a basis for denying relief in light of precedent existing at the time petitioner’s sentence became final. Indeed, to the extent that the differences are significant, they suggest that application of the Godfrey principle to the Mississippi sentencing process follows, a fortiori, from its application to the Georgia system. 1 The principal difference between the sentencing schemes in Georgia and Mississippi is that Mississippi is what we have termed a “weighing” State, while Georgia is not. See Clemons v. Mississippi, 494 U. S., at 745; Parker v. Dugger, 498 U. S. 308, 318 (1991). Under Mississippi law, after a jury has found a defendant guilty of capital murder and found the existence of at least one statutory aggravating factor, it must weigh the aggravating factor or factors against the mitigating evidence. By contrast, in Georgia the jury must find the existence of one aggravating factor before imposing the death penalty, but aggravating factors as such have no specific function in the jury’s decision whether a defendant who has been found to be eligible for the death penalty should receive it under all the circumstances of the case. Instead, under the Georgia scheme, “ ‘[i]n making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant.’” Zant v. Stephens, 462 U. S. 862, 872 (1983) (quoting the response of the Georgia Supreme Court to our certified question). That Mississippi is a weighing State only gives emphasis to the requirement that aggravating factors be defined with some degree of precision. By express language in Zant we left open the possibility that in a weighing State infection of the process with an invalid aggravating factor might require invalidation of the death sentence. Id., at 890. Although we later held in Clemons v. Mississippi that under such circumstances a state appellate" } ]

[ { "docid": "14017575", "title": "", "text": "into evidence to fill gaps in Mr. Purkey’s recollection as to the content of those conversations, see Fed.R.Evid. 803(5), Mr. Purkey’s own testimony belied his assertion of an incomplete recollection of the conversations. We can find no clear error in the magistrate judge’s observation that, “Despite Purkey’s contention that he needs these notes to assist him with remembering the details of the interrogations, Purkey’s testimony would suggest that he has no trouble remembering [those] details ... (at least until defense counsel reminded him that he should not remember).” Hence the district court did not err in denying Mr. Purkey’s motion to dismiss based on the alleged destruction of his notes. C. Mr. Purkey also argues that the district court erred in denying his pretrial motion asking the court to prohibit the government from seeking the death penalty because of two violations of the fifth amendment’s indictment clause. First, Mr. Purkey asserts that the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591-3598, is facially unconstitutional because it vests the prosecution with unilateral authority to seek the death penalty without ever taking the matter of whether the death penalty is justified to the grand jury, see 18 U.S.C. § 3593(a). Second, he argues that his prosecution ran afoul of the indictment clause because the government failed to seek an indictment upon some of the necessary elements of the capital prosecution, namely, the government’s non-statutory aggravating factors and the issue of whether the aggravating factors sufficiently outweighed any mitigating factors to justify a sentence of death. Both of these are questions of law, and we therefore review them de novo. See United States v. Koons, 300 F.3d 985, 990 (8th Cir.2002); cf. United States v. Roy, 408 F.3d 484, 491 (8th Cir.2005). In United States v. Allen, 406 F.3d 940, 949 (8th Cir.2005) (en banc), we addressed the same facial challenge that Mr. Purkey now presents. There we recognized that the FDPA does vest the prosecution with authority to charge aggravating factors in a notice of intent to seek the death penalty, and does not specifically require the government to bring those" }, { "docid": "14017623", "title": "", "text": "117 S.Ct. 1699, 137 L.Ed.2d 825 (1997). The district court’s jury instructions bolster this view as applied to Mr. Purkey’s case: The district court ensured that the jury would not employ a tally method of evaluating factors when it instructed the jury that “weighing aggravating and mitigating factors ... is not a mechanical process. In other words, you should not simply count the number of aggravating and mitigating factors. The law contemplates that different factors may be given different weights or values by different jurors.” Of course, had the government introduced an invalid aggravating factor into the jury’s weighing process, then the government might have violated Mr. Purkey’s rights under the eighth amendment. See Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). But Mr. Purkey asserts no such error here. Mr. Purkey next requests that our circuit reconsider its precedents that have approved jury instructions mandating that a jury recommend a sentence of death should it conclude, after balancing aggravating against mitigating factors, that the former sufficiently outweigh the latter to justify imposition of a death sentence. He recognizes that overruling those prece dents would require the action of our en banc court and that, as a panel of that court, we are required to give them effect. See United States v. Provost, 969 F.2d 617, 622 (8th Cir.1992). For our part, we believe that our precedents are well-reasoned. See Nelson, 347 F.3d at 712; Ortiz, 315 F.3d at 900-01. Finally, Mr. Purkey maintains that the FDPA requires juries to identify any mitigating factor that at least one juror found to exist and that the district court consequently erred by accepting the jury’s verdict form. (The verdict form asked the jury to record the number of jurors who found each mitigating factor to exist, and the jury returned that portion of the form blank.) Because Mr. Purkey presents us with a question of law- by asking us to interpret the FDPA, we review de novo the district court’s refusal to order the jury to complete the mitigation portion of the verdict form. See United" }, { "docid": "14017618", "title": "", "text": "district court denied him the right to allocution, the error would not be a constitutional one. Second, Mr. Purkey does not have a statutory right to make statements to a jury during the penalty phase of an FDPA trial without being subject to cross-examination. Rule 32(i)(4)(A)(ii) requires that “[b]efore imposing sentence,” the district court must “permit the defendant to speak or present any information to mitigate the sentence.” The district court satisfied Rule 32 when it allowed Mr. Purkey to speak “before imposing sentence.” See Hall, 152 F.3d at 392. Although Mr. Purkey’s allocution could not have mitigated his sentence because it followed the jury’s recommendation of the death penalty, see 18 U.S.C. § 3594, nowhere does Rule'32 grant Mr. Purkey a right to allocution before a jury; Rule 32 speaks only of “the court.” We agree with the Fifth Circuit that Rule 32(i)(4)(A)(ii) should not be interpreted to entitle Mr. Purkey to a right of allocution before the jury “when the plain language of the rule does not dictate such an interpretation.” Hall, 152 F.3d at 393; see also Barnette, 211 F.3d at 820. As for the FDPA, nowhere does it mention a right to allocution or anything comparable; Mr. Purkey’s claimed right on that ground therefore does not exist. C. Mr. Purkey assigns several errors relating to the jury’s special findings and recommendation of his death sentence. We previously noted that, to recommend a death sentence after determining that the defendant is eligible for such a sentence, the .jury must unanimously find that the statutory and non-statutory aggravating factors “sufficiently outweigh” the mitigating factors. See 18 U.S.C. § 3593(e). For an aggravating factor to enter into the jury’s calculation, the government must establish “the existence of such a factor ... beyond a reasonable doubt.” Id. at § 3593(c). The standard for mitigating factors, however, is less rigorous. The jury may consider any mitigating factor that at least one juror found proved “by a preponderance of the information.” Id. at § 3593(c), (d). After the jury has completed its deliberations, it must “return special findings identifying any aggravating factor" }, { "docid": "14017608", "title": "", "text": "that Mr. Purkey’s brain condition is consistent with his having suffered fetal alcohol exposure. We think that Dr. Cunningham’s testimony regarding Mr. Purkey’s fetal alcohol exposure would have provided probative mitigating evidence. Cf. Silva v. Woodford, 279 F.3d 825, 847 n. 17 (9th Cir.2002), cert. denied, 537 U.S. 942, 123 S.Ct. 342, 154 L.Ed.2d 249 (2002). Given that and the relaxed standard set forth by 18 U.S.C. § 3593(c), we conclude that the .district court erred when it excluded this evidence simply because there was no direct evidence that Mr. Purkey’s mother drank while pregnant with him. Nevertheless, when we consider the record as a whole, we are satisfied that this error was harmless beyond a reasonable doubt. See 18 U.S.C. § 3595(c)(2); Jones, 527 U.S. at 402-05, 119 S.Ct. 2090; cf. Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We are confident that the jury would have reached the sentence that it did even if the court had admitted this evidence. See Jones, 527 U.S. at 402, 119 S.Ct. 2090; cf. Sweet v. Delo, 125 F.3d 1144, 1158-59 (8th Cir.1997), cert. denied, 523 U.S. 1010, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998). The district court admitted significant expert testimony regarding Mr. Purkey’s brain abnormalities .and their impact on his mental and emotional health. The jury was not, therefore, precluded from considering Mr. Purkey’s mental and emotional impairments as potential mitigating factors; it was merely precluded from considering one of several possible explanations as to the cause of these alleged impairments. And, although we recognize that a jury may be more likely to believe that someone suffers from a problem if its cause is explained, we nevertheless harbor no doubt that considering the minimal probative value of the evidence and the overwhelming evidence and jury findings of serious aggravating factors, its exclusion was harmless. Cf. United States v. Bernard, 299 F.3d 467, 487 (5th Cir.2002), cert. denied, 539 U.S. 928, 123 S.Ct. 2572, 156 L.Ed.2d 607 (2003). Mr. Purkey also" }, { "docid": "14017619", "title": "", "text": "F.3d at 393; see also Barnette, 211 F.3d at 820. As for the FDPA, nowhere does it mention a right to allocution or anything comparable; Mr. Purkey’s claimed right on that ground therefore does not exist. C. Mr. Purkey assigns several errors relating to the jury’s special findings and recommendation of his death sentence. We previously noted that, to recommend a death sentence after determining that the defendant is eligible for such a sentence, the .jury must unanimously find that the statutory and non-statutory aggravating factors “sufficiently outweigh” the mitigating factors. See 18 U.S.C. § 3593(e). For an aggravating factor to enter into the jury’s calculation, the government must establish “the existence of such a factor ... beyond a reasonable doubt.” Id. at § 3593(c). The standard for mitigating factors, however, is less rigorous. The jury may consider any mitigating factor that at least one juror found proved “by a preponderance of the information.” Id. at § 3593(c), (d). After the jury has completed its deliberations, it must “return special findings identifying any aggravating factor ... found to exist.” Id. at § 3593(d). Mr. Purkey first contends that the district court erroneously permitted the prosecution to present the jury with duplicative aggravating factors, thereby skewing the jury’s balancing of aggravating and mitigating factors in violation of the eighth amendment. Because Mr. Purkey challenges the constitutionality of allegedly duplicative aggravating factors, we review the district court’s decision de novo. Cf. Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir.1998). Mr. Purkey’s best case for duplication is that the nonstatutory aggravator for “[substantial criminal history” mirrors the statutory aggravator for convictions of “two or more offenses punishable by a term of imprisonment of more than one year, -committed on different occasions, involving the infliction and attempted inflic tion of serious bodily injury and death upon another person.” The convictions that the government offered to support both aggravating factors were identical. We think that the Tenth Circuit is correct to conclude that the same facts can support different inferences that form different aggravators. See Medlock, v. Ward, 200 F.3d 1314, 1319 (10th Cir.2000)" }, { "docid": "14017577", "title": "", "text": "factors before the grand jury for inclusion in the indictment. But because “nothing in the Act precludes the government from also submitting them to the grand jury for inclusion in the indictment,” we rejected the contention that the FDPA was unconstitu tional. Id. Therefore, Mr. Purkey’s facial challenge also fails. To deal with Mr. Purkey’s second challenge, we begin with a bit of background. Under the FDPA, once the jury finds the defendant guilty of one of the offenses listed in 18 U.S.C, § 3591, the trial proceeds to a separate phase — the sentencing or penalty phase. In a homicide case, the jury must make three determinations in this latter phase before it can impose the death penalty: First it must find, unanimously and beyond a reasonable doubt, that the defendant acted with the requisite mens rea. See 18 U.S.C. § 3591(a)(2). Second, again unanimously and beyond a reasonable doubt, it must find the existence of at least one statutory aggravating factor. See 18 U.S.C.' §§ 3592(c), 3593(d). If the above two requirements are satisfied, the jury must then determine whether the aggravating factors, both statutory ahd non-statutory, “sufficiently outweigh” the mitigating factors presented by the defendant to justify a death sentence, “or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify” that sentence. See 18 U.S.C. § 3593(e). Mr. Purkey maintains that because the jury is required to take this third step before it may impose a sentence of death, the necessary elements' for a capital prosecution under the FDPA include all aggravating factors, including non-statutory aggravating factors, and the weighing of aggravating factors versus mitigating factors. He therefore contends that because his superseding indictment did not include non-statutory aggravating factors or a determination that there exists probable cause to believe that aggravating factors sufficiently outweigh mitigating factors so as to justify a sentence of death, it falls short of what the fifth amendment re-quirés. We disagree. “[T]he same facts that the Sixth Amendment requires to be proven to the petit jury beyond a reasonable doubt in state and" }, { "docid": "14017620", "title": "", "text": "... found to exist.” Id. at § 3593(d). Mr. Purkey first contends that the district court erroneously permitted the prosecution to present the jury with duplicative aggravating factors, thereby skewing the jury’s balancing of aggravating and mitigating factors in violation of the eighth amendment. Because Mr. Purkey challenges the constitutionality of allegedly duplicative aggravating factors, we review the district court’s decision de novo. Cf. Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir.1998). Mr. Purkey’s best case for duplication is that the nonstatutory aggravator for “[substantial criminal history” mirrors the statutory aggravator for convictions of “two or more offenses punishable by a term of imprisonment of more than one year, -committed on different occasions, involving the infliction and attempted inflic tion of serious bodily injury and death upon another person.” The convictions that the government offered to support both aggravating factors were identical. We think that the Tenth Circuit is correct to conclude that the same facts can support different inferences that form different aggravators. See Medlock, v. Ward, 200 F.3d 1314, 1319 (10th Cir.2000) (per curiam), cert. denied, 531 U.S. 882, 121 S.Ct. 197, 148 L.Ed.2d 137 (2000). Otherwise the government would either have to choose one out of several possible aggravating factors for each instance of a defendant’s misconduct or pack into a single aggravator multiple negative inferences that could be drawn from the misconduct and then risk the jury’s rejection of the aggravator due to disagreement over just one of the inferences. Even under the Tenth Circuit’s standard, however, we agree with Mr. Purkey that the nonstatutory aggravating factor duplicated the statutory one. The government used the same set of convictions each time for the same purpose, namely to show the defendant’s criminal history. The nonstatutory aggravating factor did refer to a fact of Mr. Purkey’s criminal history that went unmentioned in the statutory aggravating factor, namely, that Mr. Purkey “shot Gregg W. Carlberg on or about August 3, 1980.” Even if this fact were enough to distinguish the two aggravators, though, it overlaps with a separate statutory aggravating factor based on Mr. Purkey’s conviction of “an" }, { "docid": "20005409", "title": "", "text": "aggravating factors, thereby skewing its weighing of the aggravating and mitigating factors in deciding whether to impose the death penalty. Though the concern is legitimate, see Stringer v. Black, 503 U.S. 222, 232-33, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), the Supreme Court has never held “that aggravating factors could be duplicative so as to render them constitutionally invalid.” Purkey, 428 F.3d at 762, quoting Jones v. United States, 527 U.S. 373, 398, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (plurality opinion). The government based the pecuniary gain statutory factor on Bolden’s desire to rob the bank. It based the obstruction of justice non-statutory factor on his motive to kill Ley to eliminate a witness. And it based the “other criminal activity” non-statutory factor in part on his possession of a firearm while conspiring to rob the bank. “[T]he same facts can support different inferences that form different aggravators.” Purkey, 428 F.3d at 762. The district court properly instructed the jurors that in weighing the aggravating and mitigating factors, they were not simply to count each factor and reach a decision based on which number is greater; rather, they should individually consider the weight and value of each factor before deciding whether a sentence of death is justified. There was no unconstitutional duplication. Bolden further argues that, other than the conspiracy conviction, these crimes lacked sufficient relevance to the decision. He cites no authority supporting the assertion that the district court should have struck the other convictions on this ground. The district court did not allow the government to introduce less relevant aspects of Bolden’s criminal history, such as misrepresentations to his landlord and employer, improperly received unemployment benefits, and multiple driving violations. He argues that the Michigan convictions were too remote and allowed the jury to consider unadjudicated drug trafficking. The record does not support this assertion. The court struck testimony regarding drug sales in 1994 that were well before Bolden’s 1995 Michigan conviction. The government did not argue that the Michigan drug offenses or their underlying conduct supported this non-statutory factor, and the jury was instructed that these" }, { "docid": "14017615", "title": "", "text": "offered only marginal additional support for this defense. When we consider this fact combined with the significant number and serious nature of the aggravating factors advanced by the government and found by the jury, we cannot conclude that this error affected Mr. Purkey’s substantial rights. See 18 U.S.C. § 8595(c)(2); Jones, 527 U.S. at 402-05, 119 S.Ct. 2090; Hitchcock, 481 U.S. at 398-99, 107 S.Ct. 1821; cf. Bernard, 299 F.3d at 487; Sweet, 125 F.3d at 1158-59. Finally, Mr. Purkey asserts that the district court erred by overruling his objection to questions that the government asked on cross-examination of Dr. Peterson, one of Mr. Purkey’s expert witnesses. Specifically, Mr. Purkey’s counsel objected to the government’s inquiry into Dr. Peterson’s views on the death penalty. Even under the traditional rules of evidence, “cross-examination regarding potential bias of a witness is proper.” United States v. Amerson-Bey, 898 F.2d 681, 682 (8th Cir.1990); see United States v. McCoy, 131 F.3d 760, 760-61 (8th Cir.1997) (per curiam). If Dr. Peterson strongly disfavored the death penalty, knowledge of that would be relevant to the jury’s evaluation of his credibility in testifying to factors that could mitigate Mr. Purkey’s sentence; ‘“exposure of a witness’ motivation in testifying is a proper and important function of ... cross-examination,’ ” Van Arsdall, 475 U.S. at 678-79, 106 S.Ct. 1431 (quoting Davis, 415 U.S. at 316-17, 94 S.Ct. 1105). To the extent that the FDPA alters this rule, it relaxes it, see 18 U.S.C. § 3593(c); Lee, 274 F.3d at 495; a fortiori the district court did not err in allowing the government to continue its line of inquiry into Dr. Peterson’s beliefs about the death penalty. In addition to considering whether each of the evidentiary errors that we have found is individually sufficient to require reversal, we have also considered, * sponte, what cumulative effect these errors might have had upon Mr. Purkey’s substantial rights. Cf. United States v. Steffen, 641 F.2d 591, 597-98 (8th Cir.1981), cert. denied, 452 U.S. 943, 101 S.Ct. 3091, 69 L.Ed.2d 959 (1981). After careful review, we also conclude that the errors, even when" }, { "docid": "20005429", "title": "", "text": "also relevant to penalty-phase issues was not preserved in the district court and cannot survive plain error review. See Revels v. Vincenz, 382 F.3d 870, 877 (8th Cir.2004), cert. denied, 546 U.S. 860, 126 S.Ct. 371, 163 L.Ed.2d 140 (2005). . With little elaboration, Bolden also argues the government should have provided all rough notes from police interviews of persons who witnessed the shooting. This argument is without merit. He made no showing that any rough interview notes even existed. Van Brocklin, 115 F.3d at 595. . The contention that the government violated his Fifth and Sixth Amendment rights by failing to charge non-statutoiy aggravating factors in the indictment is foreclosed by our decision in Purkey, 428 F.3d at 748-50. . His contention that the district court erred in denying a mistrial based on this testimony is without merit. See Allen, 247 F.3d at 772 (standard of review). The jury is presumed to follow the district court's prompt instruction to disregard the question and answer. Richardson v. Marsh, 481 U.S. 200, 206-07, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). . In United States v. McVeigh, 153 F.3d 1166, 1216 (10th Cir.1998), cert. denied, 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999), 38 victim impact witnesses testified about 168 victims of the Oklahoma City bombing. . The court observed near the end of the victim impact testimony that the witnesses had been “restrained” and had done their best to control their emotions. . Bolden relies on United States v. McCullah, 76 F.3d 1087, 1111-12 (10th Cir. 1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997). McCullah is distinguishable because it turned on the submission of duplicative aggravating factors that included mental state components under 21 U.S.C. § 848(n), a different federal death penalty statute. The Tenth Circuit has more recently held that duplication “between the gateway [intent] factors and aggravating factors does not undermine the constitutional validity” of a death sentence under the FDPA. Chantha-dara, 230 F.3d at 1261. EBEL, Circuit Judge, concurring. I concur fully in the judgment and opinion of the court. I" }, { "docid": "14017578", "title": "", "text": "satisfied, the jury must then determine whether the aggravating factors, both statutory ahd non-statutory, “sufficiently outweigh” the mitigating factors presented by the defendant to justify a death sentence, “or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify” that sentence. See 18 U.S.C. § 3593(e). Mr. Purkey maintains that because the jury is required to take this third step before it may impose a sentence of death, the necessary elements' for a capital prosecution under the FDPA include all aggravating factors, including non-statutory aggravating factors, and the weighing of aggravating factors versus mitigating factors. He therefore contends that because his superseding indictment did not include non-statutory aggravating factors or a determination that there exists probable cause to believe that aggravating factors sufficiently outweigh mitigating factors so as to justify a sentence of death, it falls short of what the fifth amendment re-quirés. We disagree. “[T]he same facts that the Sixth Amendment requires to be proven to the petit jury beyond a reasonable doubt in state and federal prosecutions must also be found by the grand jury and charged in the indictment in federal prosecutions.” Allen, 406 F.3d at 943. For that reason, Allen held that to comport with the fifth amendment “at least one statutory aggravating factor and the mens rea requirement [must] be found by the grand jury and charged in the indictment” in a prosecution under the FDPA. Id. Mr. Purkey’s superseding indictment satisfies both of these requirements. The indictment must charge at least one of the statutory aggravating factors that is ultimately found by the petit jury because “that is what is required to elevate the available statutory maximum sentence from life imprisonment to death.” Id. In other words, including that factor in the indictment is required to make the defendant eligible for the death penalty. See United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003), cert. denied, — U.S. —, 125 S.Ct. 608, 160 L.Ed.2d 465 (2004). We now make clear what Allen merely implied: “There is no requirement that the indictment allege all of the" }, { "docid": "14017576", "title": "", "text": "the death penalty without ever taking the matter of whether the death penalty is justified to the grand jury, see 18 U.S.C. § 3593(a). Second, he argues that his prosecution ran afoul of the indictment clause because the government failed to seek an indictment upon some of the necessary elements of the capital prosecution, namely, the government’s non-statutory aggravating factors and the issue of whether the aggravating factors sufficiently outweighed any mitigating factors to justify a sentence of death. Both of these are questions of law, and we therefore review them de novo. See United States v. Koons, 300 F.3d 985, 990 (8th Cir.2002); cf. United States v. Roy, 408 F.3d 484, 491 (8th Cir.2005). In United States v. Allen, 406 F.3d 940, 949 (8th Cir.2005) (en banc), we addressed the same facial challenge that Mr. Purkey now presents. There we recognized that the FDPA does vest the prosecution with authority to charge aggravating factors in a notice of intent to seek the death penalty, and does not specifically require the government to bring those factors before the grand jury for inclusion in the indictment. But because “nothing in the Act precludes the government from also submitting them to the grand jury for inclusion in the indictment,” we rejected the contention that the FDPA was unconstitu tional. Id. Therefore, Mr. Purkey’s facial challenge also fails. To deal with Mr. Purkey’s second challenge, we begin with a bit of background. Under the FDPA, once the jury finds the defendant guilty of one of the offenses listed in 18 U.S.C, § 3591, the trial proceeds to a separate phase — the sentencing or penalty phase. In a homicide case, the jury must make three determinations in this latter phase before it can impose the death penalty: First it must find, unanimously and beyond a reasonable doubt, that the defendant acted with the requisite mens rea. See 18 U.S.C. § 3591(a)(2). Second, again unanimously and beyond a reasonable doubt, it must find the existence of at least one statutory aggravating factor. See 18 U.S.C.' §§ 3592(c), 3593(d). If the above two requirements are" }, { "docid": "3684127", "title": "", "text": "CLAIMS OF TRIAL ERROR We turn next to Sampson’s manifold claims of trial error. We begin by evaluating alleged errors in the charge and the jury selection process. We then proceed to Sampson’s evidence-related claims, including challenges to several of the district court’s rulings and to evidentiary sufficiency. We conclude by addressing a potpourri of other claims, including Sampson’s invocation of the cumulative error doctrine. A. Jury Instructions. We begin with the district court’s charge to the jury. Sampson alleges three strains of instructional error. Because each of them presents a properly preserved question of law, we afford de novo review, taking into,account the charge as a whole and the body of evidence presented at trial. See United States v. Woodward, 149 F.3d 46, 68-69 (1st Cir.1998); United States v. Alzanki, 54 F.3d 994, 1001 (1st Cir.1995). 1. Weighing. Sampson’s primary complaint of instructional error relates to the district court’s charge on the weighing of aggravating and mitigating factors. In Sampson’s view, these instructions violated the FDPA and, in the bargain, infringed upon constitutional protections. Specifically, he argues that the instructions (i) erroneously invited jurors to apply their own idiosyncratic standards to the weighing process and (ii) failed to require that they find beyond a reasonable doubt that aggravating factors outweighed mitigating factors before voting to impose the death penalty. Because our assessment of Sampson’s plaints must take into account the weighing instructions as a whole, Woodward, 149 F.3d at 69, we reprint the pertinent portions here: [Y]ou are called upon to decide if the proven aggravating factors or factor sufficiently outweigh the proven mitigating factors. This is not a matter of arithmetic. You’re not being asked to simply count the total number of aggravating and mitigating factors and reach a decision based on which number is greater. Instead, you must consider the weight and value that you feel should be given to each factor. Different factors may be given different weights or values by different jurors. You might find that a single aggravating factor is serious enough to outweigh several mitigating factors. Similarly, a single mitigating factor might outweigh" }, { "docid": "14017622", "title": "", "text": "offense punishable by a term of imprisonment of more than one year, involving the use ... of a firearm ... against another person,” 18 U.S.C. § 3592(c)(2) — an aggravator that went to the same history of illegal firearm use as did the shooting episode. Despite the duplication of aggravators in Mr. Purkey’s case, we see no basis for the constitutional infirmity of such factors. The Supreme Court has “never before held that aggravating factors could be duplicative so as to render them constitutionally invalid,” Jones, 527 U.S. at 398, 119 S.Ct. 2090 (plurality opinion), and we decline to do so when the FDPA avoids arbitrary death sentences by requiring juries to weigh aggravating and mitigating factors rather than to tally the factors on each side and declare a winner based on sheer numbers. See 18 U.S.C. § 3593(e). But see United States v. Tipton, 90 F.3d 861, 899 (4th Cir.1996), cert. denied, 520 U.S. 1253, 117 S.Ct. 2414 (1997); United States v. McCullah, 76 F.3d 1087, 1111-12 (10th Cir.1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997). The district court’s jury instructions bolster this view as applied to Mr. Purkey’s case: The district court ensured that the jury would not employ a tally method of evaluating factors when it instructed the jury that “weighing aggravating and mitigating factors ... is not a mechanical process. In other words, you should not simply count the number of aggravating and mitigating factors. The law contemplates that different factors may be given different weights or values by different jurors.” Of course, had the government introduced an invalid aggravating factor into the jury’s weighing process, then the government might have violated Mr. Purkey’s rights under the eighth amendment. See Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). But Mr. Purkey asserts no such error here. Mr. Purkey next requests that our circuit reconsider its precedents that have approved jury instructions mandating that a jury recommend a sentence of death should it conclude, after balancing aggravating against mitigating factors, that the former sufficiently outweigh the" }, { "docid": "14017621", "title": "", "text": "(per curiam), cert. denied, 531 U.S. 882, 121 S.Ct. 197, 148 L.Ed.2d 137 (2000). Otherwise the government would either have to choose one out of several possible aggravating factors for each instance of a defendant’s misconduct or pack into a single aggravator multiple negative inferences that could be drawn from the misconduct and then risk the jury’s rejection of the aggravator due to disagreement over just one of the inferences. Even under the Tenth Circuit’s standard, however, we agree with Mr. Purkey that the nonstatutory aggravating factor duplicated the statutory one. The government used the same set of convictions each time for the same purpose, namely to show the defendant’s criminal history. The nonstatutory aggravating factor did refer to a fact of Mr. Purkey’s criminal history that went unmentioned in the statutory aggravating factor, namely, that Mr. Purkey “shot Gregg W. Carlberg on or about August 3, 1980.” Even if this fact were enough to distinguish the two aggravators, though, it overlaps with a separate statutory aggravating factor based on Mr. Purkey’s conviction of “an offense punishable by a term of imprisonment of more than one year, involving the use ... of a firearm ... against another person,” 18 U.S.C. § 3592(c)(2) — an aggravator that went to the same history of illegal firearm use as did the shooting episode. Despite the duplication of aggravators in Mr. Purkey’s case, we see no basis for the constitutional infirmity of such factors. The Supreme Court has “never before held that aggravating factors could be duplicative so as to render them constitutionally invalid,” Jones, 527 U.S. at 398, 119 S.Ct. 2090 (plurality opinion), and we decline to do so when the FDPA avoids arbitrary death sentences by requiring juries to weigh aggravating and mitigating factors rather than to tally the factors on each side and declare a winner based on sheer numbers. See 18 U.S.C. § 3593(e). But see United States v. Tipton, 90 F.3d 861, 899 (4th Cir.1996), cert. denied, 520 U.S. 1253, 117 S.Ct. 2414 (1997); United States v. McCullah, 76 F.3d 1087, 1111-12 (10th Cir.1996), cert. denied, 520 U.S. 1213," }, { "docid": "14017624", "title": "", "text": "latter to justify imposition of a death sentence. He recognizes that overruling those prece dents would require the action of our en banc court and that, as a panel of that court, we are required to give them effect. See United States v. Provost, 969 F.2d 617, 622 (8th Cir.1992). For our part, we believe that our precedents are well-reasoned. See Nelson, 347 F.3d at 712; Ortiz, 315 F.3d at 900-01. Finally, Mr. Purkey maintains that the FDPA requires juries to identify any mitigating factor that at least one juror found to exist and that the district court consequently erred by accepting the jury’s verdict form. (The verdict form asked the jury to record the number of jurors who found each mitigating factor to exist, and the jury returned that portion of the form blank.) Because Mr. Purkey presents us with a question of law- by asking us to interpret the FDPA, we review de novo the district court’s refusal to order the jury to complete the mitigation portion of the verdict form. See United States v. Storer, 413 F.3d 918, 921 (8th Cir.2005). In a prior case, we hinted that the FDPA does not mandate that jurors identify the mitigating factors they find to exist, but we ultimately avoided deciding the question. See United States v. Paul, 217 F.3d 989, 999 n. 6 (8th Cir.2000) (citing Hall, 152 F.3d at 413). We conclude that in Paid we correctly, albeit tentatively, construed the FDPA. Section 3593(d) specifically requires the jury to “return special findings identifying any aggravating factor[s] ... found to exist,” without any mention of identifying such mitigating factors, and so requires no special findings with respect to the latter. It is true that the jury’s identification of proven mitigating factors facilitates appellate review, especially when we have to evaluate the effect of any error on the sentence that the jury recommended. Nevertheless, the jury’s failure to identify proven mitigating factors is entirely proper under the FDPA, and therefore the district court did not err by accepting the jury’s verdict form. D. In Mr. Purkey’s last assignment of error," }, { "docid": "11839160", "title": "", "text": "made the decision she needed to die. This factor clearly proven again”; and (3) “[a]gain, there’s no doubt that they chose Terry King. This was no random event.” Before deliberation, the district court instructed the jury: The process of weighing aggravating and mitigating factors against each other, or weighing aggravating factors alone if you find no mitigating factors, is by no means a mechanical process. In other words, you should not simply count the total number of aggravating and mitigating factors and reach a decision based on which number is greater; rather you should consider the weight and value of each factor.... The law contemplates that different factors may be given different weight or values by different jurors. Thus, you may find that one mitigating factor outweighs all aggravating factors combined, or that the aggravating factors proven, do not, standing alone, justify the imposition of death beyond a reasonable doubt. After deliberating, the jury found unanimously that all of the aggravating factors, both statutory and non-statutory, existed beyond a reasonable doubt. In addition, seventeen mitigating factors were found by at least one juror, and eleven of those mitigating factors were found by at least ten of the twelve jurors. Because this Circuit has not addressed the constitutionality of allegedly duplica-tive aggravating factors, Fell relies on the Tenth Circuit’s decision in United States v. McCullah, 76 F.3d 1087 (10th Cir.1996). McCullah held that under the Continuing Criminal Enterprise provision of the Anti-Drug Abuse Act, 21 U.S.C. § 848, aggravating sentencing factors that im-permissibly duplicate each other raise constitutional questions. Id. at 1111. The Tenth Circuit found that “[s]ueh double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally.” Id. Although the statute at issue in McCullah, like the FDPA, allows the jury to accord as much or as little weight to any particular factor as it views appropriate, the Tenth Circuit stated that when a sentencing body is asked, in essence, to weigh a factor twice, “a reviewing" }, { "docid": "20005408", "title": "", "text": "Ley’s head, evidence the murder was motivated in part to prevent Ley from identifying Bolden. Thus, the district court did not err in submitting this non-statutory aggravating factor. Its relative weight was solely for the jury to decide. (2) Other Criminal Conduct. At closing argument, the government argued that the jury should find “other criminal activity” as a non-statutory aggravating factor based on Bolden’s conviction of non-capital offenses during the guilt phase— conspiracy to commit bank robbery and being a felon-in-possession of a firearm— and on his 1993 Michigan conviction for resisting and obstructing a police officer. The jury found this aggravating factor beyond a reasonable doubt and that it supported imposition of the death penalty. It is well-established that the government may offer evidence of “other criminal acts” as a non-statutory aggravating factor. See Allen, 247 F.3d at 789 and cases cited. Bolden argues that this non-statutory factor allowed the government to submit the same evidence to support multiple aggravating factors, creating the risk that the jury would give too much weight to the aggravating factors, thereby skewing its weighing of the aggravating and mitigating factors in deciding whether to impose the death penalty. Though the concern is legitimate, see Stringer v. Black, 503 U.S. 222, 232-33, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), the Supreme Court has never held “that aggravating factors could be duplicative so as to render them constitutionally invalid.” Purkey, 428 F.3d at 762, quoting Jones v. United States, 527 U.S. 373, 398, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (plurality opinion). The government based the pecuniary gain statutory factor on Bolden’s desire to rob the bank. It based the obstruction of justice non-statutory factor on his motive to kill Ley to eliminate a witness. And it based the “other criminal activity” non-statutory factor in part on his possession of a firearm while conspiring to rob the bank. “[T]he same facts can support different inferences that form different aggravators.” Purkey, 428 F.3d at 762. The district court properly instructed the jurors that in weighing the aggravating and mitigating factors, they were not simply to count" }, { "docid": "14017580", "title": "", "text": "factors that might be weighed by the jury when deciding whether to impose a death sentence.” Higgs, 353 F.3d at 299. Non-statutory aggravating factors do not increase the maximum punishment to which a defendant is subject. They are neither sufficient nor necessary under the FDPA for a sentence of death. Their purpose is merely to aid the sentencer “in selecting the appropriate sentence from the available options,” id. at 298, “ ‘on the basis of the character of the [defendant] and the circumstances of the crime,’ ” id. (quoting Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994)). Further, it makes no sense to speak of the weighing process mandated by 18 U.S.C. § 3593(e) as an elemental fact for which a grand jury must find probable cause. In the words of the statute, it is a “consideration,” 18 U.S.C. § 3593(e),—that is, the lens through which the jury must focus the facts that it has found to produce an individualized determination regarding “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.” Id We thus conclude that Mr. Purkey’s arguments based on the indictment clause of the fifth amendment are without merit. II. Mr. Purkey next challenges the district court’s for-cause exclusion of three potential jurors who expressed reluctance to impose the death penalty. In Wainwright v. Witt, 469 U.S. 412, 420, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court instructed that a potential juror may be excluded for cause based on his or her views on capital punishment only if those views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). We review a district court’s removal of death-scrupled venirepersons for an abuse of discretion. See United States v. Nelson, 347 F.3d 701, 710-11 (8th Cir.2003), cert. denied, — U.S. —, 125 S.Ct. 486, 160 L.Ed.2d 355 (2004); United States v." }, { "docid": "14017625", "title": "", "text": "States v. Storer, 413 F.3d 918, 921 (8th Cir.2005). In a prior case, we hinted that the FDPA does not mandate that jurors identify the mitigating factors they find to exist, but we ultimately avoided deciding the question. See United States v. Paul, 217 F.3d 989, 999 n. 6 (8th Cir.2000) (citing Hall, 152 F.3d at 413). We conclude that in Paid we correctly, albeit tentatively, construed the FDPA. Section 3593(d) specifically requires the jury to “return special findings identifying any aggravating factor[s] ... found to exist,” without any mention of identifying such mitigating factors, and so requires no special findings with respect to the latter. It is true that the jury’s identification of proven mitigating factors facilitates appellate review, especially when we have to evaluate the effect of any error on the sentence that the jury recommended. Nevertheless, the jury’s failure to identify proven mitigating factors is entirely proper under the FDPA, and therefore the district court did not err by accepting the jury’s verdict form. D. In Mr. Purkey’s last assignment of error, he argues that the district court erred by denying his motion for a mistrial based on alleged prosecutorial misconduct. During the penalty phase of the trial, Mr. Purkey interrupted the government’s cross-examination of a psychiatric expert for the defense, at which point the district court excused the jury and Mr. Purkey gave voice to an additional comment that the prosecutor interpreted as a threat against him. During the government’s subsequent cross-examination of a defense expert, who testified to the calming effects of medication that Mr. Purkey was taking, the prosecutor asked the expert whether he was “aware [that Mr. Purkey] threatened to run my head through yesterday in court,” to which Mr. Purkey’s counsel immediately objected. The district court sustained the objection. Mr. Purkey contends that the prosecutor’s question compromised the fairness of the penalty proceedings. Earlier in our opinion, we rehearsed the legal principles that guide our review of alleged prosecutorial misconduct. Cf. Jackson, 41 F.3d at 1233. Even if, as Mr. Purkey claims, the prosecutor’s question was improper, we conclude that the question" } ]

[ { "docid": "22285746", "title": "", "text": "as of the time formal adoption proceedings were begun. Appellant incurred very substantial expenses relying on Aetna’s interpretation of an ambiguity within the Plan. Because the issue before us involves an oral interpretation of an ERISA plan, the Nachwalter decision, which is limited to oral amendments and modifications, is not controlling. See 805 F.2d at 960. The federal common law of equitable estoppel may be applied to the facts of this case. See 2 M. Rhodes, Couch Cyclopedia of Insurance Law § 15:54 (Rev. ed. 1984) (“An insurer, however, may be estopped in reference to the meaning of a particular term in one of its contracts by its own interpretation of that term”). In reaching this conclusion, we are unpersuaded by appellees’ argument that the application of the federal common law of equitable estoppel in this case would be contrary to the underlying policy of ERISA. Requiring appellees to adhere to the oral interpretations of the Plan’s provisions made by Aetna to Southern Bell employees will not undermine the integrity of the Plan. Stating the question more broadly, the use of the law of equitable estoppel to enforce oral interpretations of employee benefit plans will not affect the ability of employees and beneficiaries to rely on the written terms of such plans. Because we find that the federal common law of equitable estoppel may be applied in this case, we REVERSE the district court’s order granting summary judgment in favor of appellees and REMAND for further proceedings consistent with this opinion. . Section II of the Plan defines the term \"child” to include The employee's or retired employee’s own children and legally adopted children including those who are in the formal legal process of adoption, regardless of residence. Plan at 3. The Plan does not define the phrase \"formal legal process of adoption.\" . The parties agree that the proper standard of review is de novo. In Firestone Tire and Rubber Co. v. Bruch, - U.S. -, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that district courts should use the de novo standard to review denial" } ]

[ { "docid": "11113988", "title": "", "text": "Plans. The court found that, in fact, Appel-lees made sincere efforts to interpret and implement the Plans and to inform Appellants of their interpretations. This finding is not clear error. Appellants next beseech this Court to estop Appellees from denying them severance benefits, claiming that “[a]ll of FADA’s communications with them, including its policies, memos, and other statements,” modified the Plans and led them to believe they were entitled to severance benefits if they stayed until FADA’s termination. It is unclear to what “other statements” Appellants refer. To the extent Appellants’ claim is based on FADA’s purported oral communications, we reject it. An estoppel cause of action is not cognizable under ERISA in suits seeking to enforce rights to benefits based on purported oral modifications of plan terms. See, e.g., Rodrigue v. Western and Southern Life Ins. Co., 948 F.2d 969, 971 (5th Cir.1991); Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1297 (5th Cir.1989) (concluding that oral agreements or modifications to ERISA plan are contrary to express provisions of ERISA); Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989) (declining to create federal common law in this area, reasoning that this power extends only to areas that federal law preempts but does not address and noting that Congress has addressed the question of amendment in 29 U.S.C. § 1102(a)(1), which expressly requires that every employee benefit plan be established and maintained pursuant to a written instrument). Whether an estoppel cause of action is cognizable under ERISA for written statements that purport to amend plan terms, however, is an issue not squarely addressed by this Court. We have considerable doubt as to whether such an action exists in the instant case. We need not resolve this issue, however, because even assuming, arguendo, that Appellants’ estoppel action does exist, we conclude it nonetheless fails. To recover benefits under an equitable estoppel theory, an ERISA beneficiary must establish a material misrepresentation, reasonable and detrimental reliance upon the representation, and extraordinary circumstances. In re Unisys Corp. Retiree Medical Benefit “ERISA” Litig., 58 F.3d 896, 907 (3d Cir.1995) (citations omitted) (reaching estoppel" }, { "docid": "18065198", "title": "", "text": "712 (1972)(\"We see no reason not to give 'laws’ its natural meaning, and therefore conclude that § 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.” (citation omitted)); see also Frank, 128 F.3d at 922. . See, e.g., Airco Indus. Gases, Inc. Div. of BOC Group, Inc. v. Teamsters Health and Welfare Fund, 850 F.2d 1028, 1032 (3d Cir.1988) (\"[t]he question of whether the district court had subject matter jurisdiction pursuant to [28 U.S.C. § 1331] is not whether [the plaintiff-employer] had a valid cause of action against the [defendant-plan] under federal common law ... [but][r]ather ... whether the determination of the existence vel non of that cause of action is a question 'arising under ... the laws ... of the United States’.”) (citing 28 U.S.C. § 1331)(1982). . Jamail, Inc. v. Carpenters Dist. Council of Houston Pension & Welfare Trusts, 954 F.2d 299, 303 (5th Cir.1992) (\"Whenever Congress enacts complex comprehensive legislation, such as ERISA, minor gaps in the legislation are unavoidable ... [,][and][i]t is the judiciary's role ... to fill in these gaps.”). . See 128 F.3d at 924. . See id. at 922. . See id. at 923 (citations omitted). . Id. at 925. . Jamail, Inc., 954 F.2d at 304; Rodrigue v. Western and Southern Life Ins. Co., 948 F.2d 969, 971 (5th Cir.1991) (\"federal courts should create federal common law when adjudicating disputes regarding ERISA”) (citing Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.1989)); Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1297 (5th Cir.1989) (\"federal courts may create federal common law governing employee benefit plans in order to supplement the statutory scheme”) (citing Nachwalter v. Christie, 805 F.2d 956, 959 (11th Cir.1986)); see also United States v. Little Lake Misere Land Co., Inc., 412 U.S. 580, 593, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973) (\"[T]he inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts.”); Morales v. Pan Am. Life Ins. Co., 914 F.2d 83, 87 (5th Cir.1990) (declining to create federal common" }, { "docid": "8732168", "title": "", "text": "modifications, of the plan.... For a representation to be an interpretation of a plan, the relevant provisions of the plan must be ambiguous, that is to say, ‘reasonable persons’ could disagree as to [the provisions’] meaning and effect.”); National Companies Health Plan v. St. Joseph’s Hospital, 929 F.2d 1558, 1571-72 (11th Cir.1991) (federal common law estoppel claim recognized “when an employee relies, to his detriment, on an interpretation of an ambiguous provision in a plan by a representative of that plan.”). Moreover, all of the plaintiffs rely on Kane v. Aetna Life Insurance Co., et al., 893 F.2d 1283 (11th Cir.), cert. denied, 498 U.S. 890, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990). That opinion held that given an ambiguity noted there in the plan provisions, the federal common law of equitable estoppel could be applied. Id. at 1286. Again, we note that the premise of ambiguity is lacking here so that Kane does not strengthen the plaintiffs’ position. We note that the Ninth Circuit has found the reasoning of Kane persuasive. See Greany v. Western Farm Bureau Life Insurance Co., 973 F.2d 812, 822 (9th Cir.1992). Greany held that because the plan involved was unambiguous, the plaintiffs could not avail themselves of the federal common law claim of equitable estoppel. We are convinced that the Plan term cited here, concerning an “active employee on the payroll” within the meaning of the 5 + 5 amendment, was not ambiguous. No identification is made of an ambiguous provision, nor of any interpretation of an ambiguous provision, and accordingly there is no eviden-tiary basis for applying the estoppel theory relied on by the plaintiffs. Nor are we persuaded that here the plaintiffs’ claims may fare better because plaintiffs specifically rely on a federal common law theory, as distinguished from an estoppel grounded in State law. It is true that the preemption language in 29 U.S.C. § 1144(a) is phrased in terms that the federal statutory provisions “shall supersede any and all State laws” that relate to any employee benefit plan (emphasis added). However our opinion in Miller v. Coastal Corp., 978 F.2d" }, { "docid": "22228724", "title": "", "text": "instrument describe the formal procedures by which the-plan can be amended, id. § 1102(b)(3). Based upon this statutory scheme, any modification to a plan must be implemented in conformity with the formal amendment procedures and must be in writing. Oral or informal written modifications to a plan, such as those alleged by Coleman in this case, are of no effect. Equitable estoppel principles, whether denominated as state or federal common law, have not been permitted to vary the written terms of a plan. Indeed, this circuit has said that “resort to federal common law generally is inappropriate when its application would ... threaten to override the explicit terms of an established ERISA benefit plan.” Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir.1992); accord Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 n. 10 (3d Cir.1990); Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1296-97 (5th Cir.1989); Musto v. American Gen. Corp., 861 F.2d 897, 910 (6th Cir.1988); Straub v. Western Union Tel. Co., 851 F.2d 1262, 1265-66 (10th Cir.1988); Nachwalter, 805 F.2d at 959-61; see also Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 120 (4th Cir.1989) (rejecting claims because “they rest on an allegation that the pension plan was modified by informal and unauthorized amendment which, as a matter of law, is impermissible”). In an effort to avoid the prohibition against using equitable estoppel to modify the written terms of a plan, Coleman claims that Nationwide’s statements constituted an interpretation, not a modification, of the written plan. Based upon this construction of the facts, she argues that we should adopt the view of the Eleventh Circuit that estoppel principles may be invoked in ERISA cases when the statements at issue are interpretations of ambiguous plan provisions. See National Cos. Health Benefit Plan v. St. Joseph’s Hosp. of Atlanta, Inc., 929 F.2d 1558, 1571-72 (11th Cir.1991); Kane v. Aetna Life Ins., 893 F.2d 1283, 1286 (11th Cir.1990). We need not decide whether we agree with the view of the Eleventh Circuit, however, because this case involves an outright modification, not an interpretation of the plan." }, { "docid": "13675835", "title": "", "text": "F.3d 1073, 1080-82 (9th Cir.2000). The cases, it is true, carve an exception for medical benefits assigned to a healthcare provider in exchange for health care, a common method of financing such care. See, e.g., Principal Mutual Life Ins. Co. v. Charter Barclay Hospital, Inc., 81 F.3d 53, 55-56 (7th Cir.1996). That would not support a conclusion that Morlan’s ERISA claim for welfare benefits was assignable to the trustee in bankruptcy, however, because the trustee is not a health-care provider. Our court has a case of that sort, but our opinion in that case takes no position on whether other types of welfare benefit are assignable and if so whether there is any restriction on who the assignees may be. Plumb v. Fluid Pump Service, Inc., supra, 124 F.3d at 863 and n. 15. However, in Kennedy v. Connecticut General Life Ins. Co., 924 F.2d 698, 700 (7th Cir.1991), we rejected the reasoning later adopted in cases like Simon by holding that a properly assigned ERISA claim makes the assignee a participant or beneficiary within the meaning of the Act. Only the Fifth Circuit has actually held that claims for such benefits are assignable without restrictions. The principal case is Hermann Hospital v. MEBA Medical & Benefits Plan, 845 F.2d 1286, 1289 (5th Cir.1988), which, though it too concerned health benefits, based its holding that they are assignable on the absence of a statutory provision forbidding their assignment, a ground independent of the nature of the welfare benefits or whom they are assigned to. Another Fifth Circuit decision, Texas Life, Accident, Health & Hospital Service Ins. Guaranty Ass’n v. Gaylord Entertainment Co., 105 F.3d 210, 214-15 (5th Cir.1997), holds that claims for welfare benefits are assignable regardless of their nature, though the ground of the decision (a ground equally applicable to pension plans, by the way — and Texas Life involved a pension plan, not a welfare plan) is one we have difficulty understanding. It is that benefits, and a claim that benefits were withheld in breach of the plan administrator’s fiduciary obligations, are different animals, so that the statutory" }, { "docid": "6142134", "title": "", "text": "ERISA § 404(a). 29 U.S.C. § 1104(a). The district court held that this claim was not actionable under ERISA because plaintiffs’ claims did not arise out of an ERISA plan. In addition, the court ruled that plaintiffs stated no claim under common law. The district court determined, and plaintiffs concede, that Chevron’s promises were not contained in a written plan document as required by section 402(a)(1) of ERISA. 29 U.S.C. § 1102(a)(1). That Chevron’s statements were made in writing is irrelevant as they do not profess to be plan amendments. ERISA requires that a plan under its auspices “provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan.” 29 U.S.C. § 1102(b)(3). Our court has held that an oral agreement cannot sustain a cause of action under ERISA. Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1297 (5th Cir.1989). See also Rodrigue v. Western and Southern Life Ins. Co., 948 F.2d 969, 971-72 (5th Cir.1991) (holding plaintiff precluded from arguing that employer was estopped from denying coverage based on oral modifications to plan); Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989) (ERISA precludes oral modifications to plan and as well as claims of promissory estoppel in suit seeking to enforce rights to pension benefits). This reasoning extends to written modifications or promises which are not, and do not purport to be, formal amendments of a plan following the procedures required by section 1102(b)(3). See Alday v. Container Corp. of America, 906 F.2d 660, 665-66 (11th Cir.1990) (holding that booklet summarizing benefits and pre-retirement letters were insufficiently formal writings and did not amend ERISA plan; interpreting 29 U.S.C. § 1102(b)(3) to prohibit modification of plan by informal written agreement), cert. denied, 498 U.S. 1026, 111 S.Ct. 675, 112 L.Ed.2d 668 (1991). Chevron’s statements did not purport to be part of, or an amendment to, either company’s pension plan, nor is there any evidence that either Chevron or Gulf attempted to amend either plan to include the promises. Chevron’s statements, therefore, are not part of any ERISA plan. In any" }, { "docid": "19842402", "title": "", "text": "to continue her benefits under COBRA, as long as she did not suffer a gap in the character of her coverage as the result of her termination. That Circuit based its holding both on the legislative history of the statute at issue, and on dicta in the Oakley opinion expressing concern about the gap in coverage experienced by that plaintiff. Id. at 297. The provision at issue was next construed by the Eleventh Circuit in National Cos. Health Benefit Plan v. St. Joseph’s Hosp. of Atlanta, Inc., 929 F.2d 1558 (11th Cir.1991). That Circuit joined the Fifth Circuit in holding that coverage under a preexisting group health plan terminated the plaintiffs former employer’s obligation to provide continuation coverage. It rejected the Tenth Circuit’s emphasis on the “becomes, after the date of election” language in the statute, and held that the true issue the Court should address was whether Congress’ purpose — employee group health coverage — had been served. Thus, under the Eleventh Circuit’s reasoning: it is immaterial when the employee obtains other group coverage; the only relevant question is when, after the election date, does that other coverage take effect. In the case of an employee covered by preexisting group health coverage, the terminating event occurs immediately; the first time after the election date that the employee becomes covered by a group health plan other than the employer’s plan is the moment after the election date. In effect, such an employee is ineligible for continuation coverage. Id. at 1570. The Court went on to hold that an employee with dual coverage may be entitled to continuation coverage if there is a significant gap between the coverage afforded under the employer’s plan and the coverage afforded under the preexisting dual plan. This is because, in that situation,' the employee is not truly “covered” by the preexisting group health plan ... the employee, despite his other coverage, will be liable personally for substantial medical expenses to his and his family’s detriment. Denying continuation coverage in that setting would serve to frustrate, rather than foster, Congress’ clear intentions. Id. at 1571. The" }, { "docid": "14250155", "title": "", "text": "collusive or fraudulent side agreements between employers and employees. But for the ‘written instrument’ clause, employees could discriminate in favor of certain plan participants to the detriment of others.” Williams v. Bridgestone/Firestone, Inc., 954 F.2d 1070, 1073 (5th Cir.1992) (quoting Cefalu v. B.F. Goodrich, 871 F.2d 1290, 1296 (5th Cir.1989)). Serious doubts have been expressed over the extension of plan eligibility through estoppel and the courts have placed various limitations on the use of these principles. The Court of Appeals for the Eleventh Circuit has held that claimant’s cannot succeed on estoppel arguments based on oral modifications of employee benefit plans. Nachwalter v. Christie, 805 F.2d 956 (11th Cir.1986). See also Straub v. Western Union Tel. Co., 851 F.2d 1262, 1263-64 (10th Cir.1988) (state common law claim of promissory estoppel based upon an oral modification to an ERISA plan preempted under 29 U.S.C. § 1144(a)). However, the courts are allowed to fashion a common law equitable estoppel in cases involving oral interpretations of ambiguities in such plans. Kane v. Aetna Life Insurance, 893 F.2d 1283, 1285-86 (11th Cir.), cert denied, — U.S. -, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990). The Kane case makes clear that the rule enunciated therein only comes into play when the terms of the plan are ambiguous and the communications constituted an interpretation of that ambiguity. Alday v. Container Corp. of America, 906 F.2d 660, 666 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 675, 112 L.Ed.2d 668 (1991). In Landro v. Glendenning Motorways, Inc., 625 F.2d 1344 (8th Cir.1980) the Court of Appeals for the Eighth Circuit applying Minnesota law upheld the application of estoppel principles to an ERISA plan. However, this case provides no indication of the view of the Eighth Circuit on the issue before this court because the acts or omissions at issue occurred before the effective date of ERISA’s preemption provision. Thus, no argument was or could have been presented regarding the possible preemption of equitable estoppel principles. In Phillips v. Kennedy, 542 F.2d 52 (8th Cir.1976) the Eighth Circuit made the following comments: We are urged to decide" }, { "docid": "7950830", "title": "", "text": "are preempted. In Pilot Life, the Court held that ERISA preempts all state common law causes of action based on the alleged improper processing of a claim for benefits. As this Circuit has subsequently noted, “ERISA’s preemptive power remains virtually undefeated.” Maciosek v. Blue Cross & Blue Shield, 930 F.2d 536, 539 (7th Cir.1991). However, courts have recognized that where the plaintiff is a third-party health care provider there are certain situations in which preemption will not occur. In Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236 (5th Cir.1990), the Fifth Circuit found that a hospital’s claim against the employer of one of its patients and that employer’s group health insurer for negligent misrepresentation was not pre-empted by ERISA. The court stated: We cannot believe that Congress intended the preemptive scope of ERISA to shield welfare plan fiduciaries from the consequences of their acts toward non-ERISA health care providers when a cause of action based on such conduct would not relate to the terms or conditions of a welfare plan, nor affect — or affect only tangentially — the ongoing administration of the plan. Id. at 250. The court noted that ERISA pre-emption is generally found in actions which have one of two characteristics, “(1) the state law claims address areas of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; and (2) the claims directly affect the relationship among the traditional ERISA entities — the employer, the plan and its fiduciaries, and the participants and beneficiaries.” Id. at 245. It held that neither of these characteristics was present when a health care provider brought an action based on its status as an independent third-party provider. The court found that a claim of misrepresentation concerning the existence of coverage was “independent of the plan's actual obligations under the terms of the insurance policy and in no way seeks to modify those obligations.” Id. at 250. The Tenth Circuit recently followed this reasoning in Hospice of Metro Denver v. Group Health Ins., 944 F.2d 752 (10th Cir.1991). In that case" }, { "docid": "14451873", "title": "", "text": "discretionary on the part of the Plan (legal liability ... remains with the participant or the patient and is not assumed by the Plan).” (Id.) The Second Circuit has not ruled either on whether ERISA permits assignments, or on the effect of an anti-assignment clause in an ERISA medical plan. Defendant argues that the Third Circuit’s conclusion that assignees lack standing should be followed. Northeast Dep’t ILGWU Health & Welfare Fund v. Teamsters Local No. 229 Welfare Fund, 764 F.2d 147, 154 n. 6 (3rd Cir.1985). The Third Circuit’s statements on standing, however, are dicta, and tentative dicta at that. See id. (“even if Mrs. Fazio had actually assigned her claim to the ILGWU Fund, we have serious doubts whether she could assign along with her substantive rights her right to sue in federal court”); see also United States v. Oshatz, 912 F.2d 534, 540 (2d Cir.1990) (“If every phrase in an opinion were accorded binding effect, there would be a tendency either to refine language with such meticulous care as to imperil the prompt disposition of the Court’s work or to reduce opinions to bare pronouncements of holdings”), cert. denied, 500 U.S. 910, 111 S.Ct. 1695, 114 L.Ed.2d 89 (1991). Moreover, the Court left unexplained the source of its “serious doubts” that, as the concurring judge argued, it is possible to assign standing under ERISA. I find the Fifth, Seventh, and Ninth Circuits’ views on assignability and standing more convincing. See Hermann Hospital v. MEBA Medical and Benefits Plan, 845 F.2d 1286 (5th Cir.1988) (“Hermann I”); Hermann Hospital v. MEBA Medical and Benefits Plan, 959 F.2d 569 (5th Cir.1992) (“Hermann II”); Kennedy v. Connecticut Gen. Life Ins., 924 F.2d 698, 700-01 (7th Cir.1991); Misic v. Building Service Employees Health & Welfare Trust, 789 F.2d 1374, 1377-78 (9th Cir.1986) (assignees stand in shoes of beneficiaries). In Hermann I the Fifth Circuit held that ERISA “allows the assignment of health care benefits” but failed to address the issue of whether the specific plan under consideration permitted assignments. 845 F.2d at 1289. After remanding the case to determine whether the hospital was" }, { "docid": "23364577", "title": "", "text": "modification. The Eleventh Circuit has recognized this distinction and applied estop-pel principles to various ERISA benefit plans if the oral statement involved was an interpretation of a plan, not a modification. Kane v. Aetna Life Insurance, 893 F.2d 1283 (11th Cir.), cert. denied, 498 U.S. 890, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990) (applying estoppel to medical benefits plan). See also National Companies Health Benefit Plan v. St. Joseph’s Hosp., 929 F.2d 1558 (11th Cir.1991) (estoppel applied to group medical benefits plan); Simmons v. Southern Bell Telephone & Telegraph Co., 940 F.2d 614 (11th Cir.1991) (estoppel available to plaintiff challenging life insurance plan). Under the Eleventh Circuit’s analysis, a plaintiff must prove that the relevant provision in the plan was ambiguous and that he relied on an oral interpretation of that ambiguous provision. Simmons, 940 F.2d at 617-18. Mr. Russo invites us to adopt the Eleventh Circuit’s reasoning. However, even if we were to adopt this interpretation/modification distinction, Mr. Russo cannot meet the Eleventh Circuit’s test. The test requires an ambiguous provision. Section 4.2 reads in part: “An Employee shall be eligible for an Early Pension upon retirement on or after his 57th birthday and completion of 20 or more years of Vesting Service.” This language is not ambiguous — the employee must be 57 and have 20 years of service when he retires in order to qualify for an early retirement pension. See Apponi, 809 F.2d at 1219 (almost identical provision held not to be ambiguous). Moreover, as we demonstrate below, Mr. Russo has not established an estoppel claim. Therefore, because the facts of this case do not require us to decide whether the interpretation/modification distinction is a valid one in this circuit, we do not. Instead, we conclude that Mr. Russo’s appeal must fail because he has not established the existence of the elements of es-toppel. “An estoppel arises when one party has made a misleading representation to another party and the other has reasonably relied to his detriment on that representation.” Black, 900 F.2d at 115. Heckler v. Community Health Services, Inc., 467 U.S. 51, 59, 104" }, { "docid": "17104866", "title": "", "text": "first year of coverage. Therefore, although Mr. Conery was covered under the SLI plan, the coverage was incomplete. BTL contends that under the 1987 version of COBRA, the gap in the coverage under the SLI plan caused by the preexisting condition clause did not obligate BTL to provide Mr. Conery with insurance coverage after October 31, 1987.' In support of this contention, BTL points to Martin v. Prudential Insurance Co., 776 F.Supp. 1172 (S.D.Miss.1991), which held that the wife of an employee covered under COBRA was not entitled to COBRA coverage for her pre-existing condition after becoming covered under another employer’s plan, even though the new employer’s plan excluded pre-existing conditions from coverage. The Martin court noted that the 1989 amendments to COBRA expressly required that continuation coverage be provided in such instances, but found that this amendment came too late to assist the plaintiffs. BTL requests that the court follow the reasoning of Martin and find that any obligation to provide continuation coverage by BTL expired on October 31. The court declines this request. The Martin decision is contrary to the clear weight of authority. Circuit courts addressing the pre-1989 language of 29 U.S.C. § 1162(2)(D)(i) have interpreted the statute to entitle an employee to receive continuation coverage under the previous employer’s plan in cases where the employee becomes covered under a pre-existing group health plan if a significant gap in coverage exists between the two plans. See National Companies Health Benefit Plan v. St. Joseph’s Hosp., 929 F.2d 1558, 1571 (11th Cir.1991); Brock v. Primedica, Inc., 904 F.2d 295 (5th Cir.1990); Oakley v. Longmont, 890 F.2d 1128 (10th Cir.1989) (interpreting identical language in Public Health Service Act). The language, in the cited appellate decisions constitute dicta, . but the court finds the reasoning behind that language to be persuasive. As the Eleventh Circuit noted in National Companies, 929 F.2d 1558, an employee is entitled to continuation coverage when such a gap in coverage exists because: [I]n that.situation, the employee is not truly “covered” by the preexisting group health plan, as that term is used by Congress to effectuate" }, { "docid": "20331063", "title": "", "text": "The Fifth Circuit and the Second Circuit have also rejected the Fentron court’s approach. Her-mann Hosp., 845 F.2d at 1288-1289; Pressroom, 700 F.2d 889. . See abo United States Fidelity & Guar. Co. v. United States, 231 U.S. 237, 243, 34 S.Ct. 88, 90, 58 L.Ed. 200 (1913) (assignee of claimant under federal construction contractors’ performance bond has standing to sue); Title Guar. & Trust Co. v. Crane Co., 219 U.S. 24, 29, 34, 31 S.Ct. 140, 142, 55 L.Ed. 72 (1911) (same); Klamath-Lake Pharmaceutical Ass’n v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1282-83 (9th Cir.1983) (as amended) (valid assignment under antitrust laws confers standing on assignee), cert. denied, 464 U.S. 822, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983); Martin v. Morgan Drive Away, Inc., 665 F.2d 598, 602 (5th Cir.1982) (same), cert. dbmbsed, Morgan Drive Away, Inc. v. Samford, 458 U.S. 1122, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); United States v. Three Hundred Sixty Four Thousand Nine Hundred Sixty Dollars, etc., 661 F.2d 319, 326-27 (5th Cir.1981) (valid assignment gives assignee standing under forfeiture laws); see generally L. Fuller & M. Eisenberg, Basic Contract Law 794-801 (4th ed.1981). . In Misic, plaintiff, a healthcare provider, sued an employer-funded health and welfare benefit plan, alleging a contract claim under ERISA, state law tort claims, and unfair business practices in violation of the California Insurance Code. The court held that plaintiffs state law claims were preempted, but that as an assignee of plan beneficiaries, plaintiff had standing under ERISA to assert the breach of contract claim and other claims of his assignors. Misic, 789 F.2d at 1379. . Compare Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir.1986). The Court in Nachwalter held that \"the federal common law of equitable estoppel is not available to plaintiffs in cases involving oral amendments to or modifications of employee plans governed by ERISA,\" due to ERISA’s requirement that plans be written, 29 U.S.C. § 1102(a)(1)). In Nachwalter, trustees of two employee benefit plans sought a declaratory judgment to determine the extent of their liability to the widow of a deceased plan participant," }, { "docid": "22228725", "title": "", "text": "805 F.2d at 959-61; see also Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 120 (4th Cir.1989) (rejecting claims because “they rest on an allegation that the pension plan was modified by informal and unauthorized amendment which, as a matter of law, is impermissible”). In an effort to avoid the prohibition against using equitable estoppel to modify the written terms of a plan, Coleman claims that Nationwide’s statements constituted an interpretation, not a modification, of the written plan. Based upon this construction of the facts, she argues that we should adopt the view of the Eleventh Circuit that estoppel principles may be invoked in ERISA cases when the statements at issue are interpretations of ambiguous plan provisions. See National Cos. Health Benefit Plan v. St. Joseph’s Hosp. of Atlanta, Inc., 929 F.2d 1558, 1571-72 (11th Cir.1991); Kane v. Aetna Life Ins., 893 F.2d 1283, 1286 (11th Cir.1990). We need not decide whether we agree with the view of the Eleventh Circuit, however, because this case involves an outright modification, not an interpretation of the plan. In Kane, the Eleventh Circuit recognized that “estoppel may not be invoked to enlarge or extend the coverage specified in a contract.” 893 F.2d at 1285 n. 3. In this case, estopping Nationwide from terminating the contract of insurance when no premiums were paid would have the effect of providing Coleman benefits even though the contract unambiguously indicates that she was entitled to none. We can only regard such a result as a modification of the plan’s termination provision and, therefore, as being in direct conflict with the statutory requirements. We are unpersuaded by Coleman’s view that estoppel principles are available in cases involving employee welfare benefit plans, but not in pension plan cases. According to Coleman, the reason for denying use of equitable estoppel principles in pension plan cases is to protect the actuarial soundness of those plans. See Armistead v. Vernitron Corp., 944 F.2d 1287, 1300 (6th Cir.1991); Black v. TIC Inv. Corp., 900 F.2d 112, 115 (7th Cir.1990). Since welfare benefit plans are unfunded and lack the stringent accrual and vesting re-quirements" }, { "docid": "8817290", "title": "", "text": "(1986). Importantly for this case, we “review the facts drawing all inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). ANALYSIS In Cefalu, we held that oral modifications to an employee benefit plan governed by ERISA could not form a basis for a breach of contract claim. Similarly, in Degan v. Ford Motor Co., 869 F.2d 889 (5th Cir.1989), we held that “ERISA precludes oral modifications to benefit plans and that claims of promissory estoppel are not cognizable in suits seeking to enforce rights to pension benefits.” Id. at 895 (citations omitted). Most recently, we held that plaintiffs could not succeed in an action attempting to alter the plain meaning of an employee benefit plan governed by ERISA based on a theory of equitable estoppel. Rodrigue v. Western and Southern Life Ins. Co., 948 F.2d 969 (5th Cir.1991). We noted therein that “ERISA specifically provides that its provisions preempt state laws that relate to any employee benefit plan. 29 U.S.C. § 1144(a).” Id. at 971. Therefore, claimants may not recover based on a state law theory of estoppel. Moreover, while “[t]he Degan Court explained that Congress intended that federal courts should create federal common law when adjudicating disputes regarding ERISA, ... [t]he Court cautioned ... that this power extends only to areas that federal law preempts but does not address.” Id. [Citations omitted]. In Rodrigue, we noted the Degan Court’s recognition that 29 U.S.C. §§ 1102(a)(1) and (b)(1) require that employers establish and maintain benefit plans according to a written instrument which establishes procedures for amendment and specifies those authorized to make amendments. Id. Therefore, Congress has addressed the question of amendment and we “are not free to fashion federal common law that recognize[s] estoppel-based arguments.” Id. Williams, however, claims that he is not attempting to modify the terms of the Plan. Rather, he claims that because the Plan does not define “five years,” its meaning is open to interpretation. He does not deny that his service ended a few days before a calendar would have" }, { "docid": "13675836", "title": "", "text": "the meaning of the Act. Only the Fifth Circuit has actually held that claims for such benefits are assignable without restrictions. The principal case is Hermann Hospital v. MEBA Medical & Benefits Plan, 845 F.2d 1286, 1289 (5th Cir.1988), which, though it too concerned health benefits, based its holding that they are assignable on the absence of a statutory provision forbidding their assignment, a ground independent of the nature of the welfare benefits or whom they are assigned to. Another Fifth Circuit decision, Texas Life, Accident, Health & Hospital Service Ins. Guaranty Ass’n v. Gaylord Entertainment Co., 105 F.3d 210, 214-15 (5th Cir.1997), holds that claims for welfare benefits are assignable regardless of their nature, though the ground of the decision (a ground equally applicable to pension plans, by the way — and Texas Life involved a pension plan, not a welfare plan) is one we have difficulty understanding. It is that benefits, and a claim that benefits were withheld in breach of the plan administrator’s fiduciary obligations, are different animals, so that the statutory anti-assignment provision is interpretable as forbidding assignment of benefits but not of benefit claims that have matured into causes of action. Now that we must resolve the issue, we hold that claims for welfare benefits, not limited to health-care benefits, are assignable, provided of course that the ERISA plan itself permits assignment, assignability being a matter of freedom of contract in the absence of a statutory bar. Kennedy v. Connecticut General Life Insurance Co., supra, 924 F.2d at 700. The absence of a counterpart to the anti-assignment provision for pension plans is telling; and in this regard we do not understand how the courts that have held welfare benefits nonassignable square their conclusion with the Supreme Court’s decision in Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837-38, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), which held that, precisely because there is no anti-assignment provision for welfare plans, ERISA does not prohibit a state from garnishing benefits payments due plan participants. See In re Taft, 184 B.R. 189, 191 (E.D.N.Y.1995). Garnishment and" }, { "docid": "23080512", "title": "", "text": "31, 1983, and what the Greanys were asking for was an impermissible amendment or modification of the policy. The Greanys argue the district court misapplied Kane because the provision in the contract at issue, as in Kane, was vague, and Lincoln National’s conduct amounted to an interpretation of the provision. ERISA preempts state claims based on equitable estoppel. Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1095 (9th Cir.1985). Some circuits have held that federal common law equitable estoppelbased theories cannot be applied to a claim under ERISA. See Rodrigue v. Western and S. Life Ins. Co., 948 F.2d 969, 970-72 (5th Cir. 1991) (citing the Seventh, Eighth, Tenth and Eleventh Circuits). This court, however, has recognized that federal equitable estoppel principles can, in certain circumstances, apply to some claims arising under ERISA. See Davidian v. Southern Cal. Meat Cutters Union and Food Employees Benefit Fund, 859 F.2d 134, 136 (9th Cir.1988); Ellenburg, 763 F.2d at 1096. Ellenburg established four federal common law elements of equitable estoppel that are applicable to an ERISA action: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury. Ellenburg, 763 F.2d at 1096. Davidian narrowed the broad holding of Ellenburg by concluding a party cannot maintain a federal equitable estoppel claim against a trust fund where recovery on the claim would contradict written plan provisions. Davidian, 859 F.2d at 136. The Greanys do not argue an estoppel claim against the Trust, thus the Davidian holding is inapplicable to the case before us. Because the Greanys allege an estoppel claim only against Lincoln National, which does not fit within the Davidian holding because it is not a trust fund, we are faced with the question of whether a federal estoppel claim is available against a non-trust party in the face of contrary written plan" }, { "docid": "23364576", "title": "", "text": "1 (7th Cir.1978). See also Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1163 (3rd Cir.1990); Straub v. Western Union Telegraph Co., 851 F.2d 1262, 1265 (10th Cir.1988); Nachwalter v. Christie, 805 F.2d 956, 960-62 (11th Cir.1986); Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032, 1041 (2d Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1189, 89 L.Ed.2d 304 (1986). Mr. Russo attempts to circumvent this general rule via two separate routes. First, Mr. Russo correctly points out that an exception to the general rule exists in this circuit. In Black v. TIC Investment Corp., 900 F.2d 112, 115 (7th Cir.1990), we applied estoppel principles to a single-employer unfunded welfare plan. Mr. Russo urges us to extend the Black exception to this case. Because, as we explain below, Mr. Russo has not established the requisite elements of estoppel, we decline to decide whether estoppel can be applied to other ERISA plans. Second, Mr. Russo argues that estoppel is permissible because he relied on an oral interpretation of the Plan, not an oral modification. The Eleventh Circuit has recognized this distinction and applied estop-pel principles to various ERISA benefit plans if the oral statement involved was an interpretation of a plan, not a modification. Kane v. Aetna Life Insurance, 893 F.2d 1283 (11th Cir.), cert. denied, 498 U.S. 890, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990) (applying estoppel to medical benefits plan). See also National Companies Health Benefit Plan v. St. Joseph’s Hosp., 929 F.2d 1558 (11th Cir.1991) (estoppel applied to group medical benefits plan); Simmons v. Southern Bell Telephone & Telegraph Co., 940 F.2d 614 (11th Cir.1991) (estoppel available to plaintiff challenging life insurance plan). Under the Eleventh Circuit’s analysis, a plaintiff must prove that the relevant provision in the plan was ambiguous and that he relied on an oral interpretation of that ambiguous provision. Simmons, 940 F.2d at 617-18. Mr. Russo invites us to adopt the Eleventh Circuit’s reasoning. However, even if we were to adopt this interpretation/modification distinction, Mr. Russo cannot meet the Eleventh Circuit’s test. The test requires an ambiguous provision. Section 4.2 reads" }, { "docid": "18065199", "title": "", "text": "the judiciary's role ... to fill in these gaps.”). . See 128 F.3d at 924. . See id. at 922. . See id. at 923 (citations omitted). . Id. at 925. . Jamail, Inc., 954 F.2d at 304; Rodrigue v. Western and Southern Life Ins. Co., 948 F.2d 969, 971 (5th Cir.1991) (\"federal courts should create federal common law when adjudicating disputes regarding ERISA”) (citing Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.1989)); Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1297 (5th Cir.1989) (\"federal courts may create federal common law governing employee benefit plans in order to supplement the statutory scheme”) (citing Nachwalter v. Christie, 805 F.2d 956, 959 (11th Cir.1986)); see also United States v. Little Lake Misere Land Co., Inc., 412 U.S. 580, 593, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973) (\"[T]he inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts.”); Morales v. Pan Am. Life Ins. Co., 914 F.2d 83, 87 (5th Cir.1990) (declining to create federal common law unjust enrichment and third-party beneficiary claims where creation of such claims \"would be inconsistent with ERISA’s terms and policies”). . Jamail, Inc., 954 F.2d at 303. . Cefalu, 871 F.2d at 1297 (refusing to apply federal common law to ERISA \"because ERISA specifically and clearly addresse[d] the issue before th[e] Court”); Rodrigue, 948 F.2d at 971-72 (refusing to create federal common law rule that would allow employee to assert an estoppel-based argument against the Plan because ERISA \"addresses estoppel claims”) (citing Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989) (power to create federal common law when adjudicating ERISA disputes exists only where ERISA preempts but does not address the issue) (citations omitted)). . Knudson, 534 U.S. at 220, 122 S.Ct. 708 (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 261, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)). . CBA did not assert a state law cause of action for breach of contract, and thus we express no opinion as to whether such a claim would be preempted. . 29 U.S.C. §" }, { "docid": "9622297", "title": "", "text": "v. Health, Welfare & Pension Fund, Local 705, Int’l Brotherhood of Teamsters, 984 F.2d 762, 766 (7th Cir.1993) (noting that uniform interpretation and application of plan rules are important factors in deciding whether a denial of benefits is arbitrary and capricious). The plaintiff offered no contrary proof at the hearing. The employer’s director of employee benefits also testified that she knew of no instance in which a lump-sum severance payment had been considered as earned compensation for pension calculation purposes. Plaintiff did not rebut this evidence and instead relied on his same argument that the plan did not specifically exclude severance payments from the definition of compensation. Therefore, we cannot say that the plan committee’s reliance on the evidence before it was unreasonable. IV. Nor can we say that principles of estoppel should apply to this ease. Although the Seventh Circuit has applied estoppel principles in unfunded benefit plans (welfare plans), this court expressed no opinion as to whether these principles should be applied to funded plans. Black v. TIC Investment Corp., 900 F.2d 112, 115 (7th Cir.1990). See also Thomason v. Aetna Life Ins. Co., 9 F.3d 645, 647-48 (7th Cir.1998) (reaffirming Black without discussing whether it should be extended to funded benefit plans such as pensions). Another case that the plaintiff relies upon does not resolve this issue because it involved an unfunded employee welfare plan (health insurance). See Kane v. Aetna Life Ins., 893 F.2d 1283 (11th Cir.1990). Most circuits that have considered this issue have declined to extend estoppel principles to funded plans. See Watkins v. Westinghouse Hanford Co., 12 F.3d 1517, 1527-28 (9th Cir. 1993); Miller v. Coastal Corp., 978 F.2d 622, 624-25 (10th Cir.1992). See also Law v. Ernst & Young, 956 F.2d 364, 367 (1st Cir. 1992) (declining to resolve issue in pension plan case because plaintiff failed to establish elements of estoppel). The ordinary reason cited for this reluctance is the concern for the actuarial soundness of funded plans. Black, 900 F.2d at 115. See also Jones v. UOP, 16 F.3d 141, 145 (7th Cir.1994) (expressing concern over oral modification of ERISA" } ]

[ { "docid": "22126658", "title": "", "text": "refused to return phone calls from Burlington. Burlington stated that it wanted to question the president of Esprit’s sports division as to why he refused to ship clothing to Burlington, once Esprit’s other division had so refused. Burlington also complained that it had been unable to depose any of the 129 employees of Federated that Federated identified through interrogatories as having had contact with Esprit. Burlington now concedes that it would have been unreasonable to depose all of the identified employees but argues that it should have been able to depose some of them. However, neither in its memorandum in the district court nor in its brief before us, has Burlington stated which employees it wanted to depose or disclosed with any specificity what it desired to elicit. We regard all of these claims as to the need for more discovery as marginal, permissible if made in a timely fashion, but hardly adequate grounds for delay when made at the eleventh hour. Finally, we note that Rule 56(f) requires the opponent of a motion for summary judgment who claims to be unable to produce evidence in opposition to the motion to file an affidavit explaining: 1) the nature of the uncompleted discovery, i.e., what facts are sought and how they are to be obtained; and 2) how those facts are reasonably expected to create a genuine issue of material fact; and 3) what efforts the affiant has made to obtain those facts; and 4) why those efforts were unsuccessful. See Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017 (5th Cir.1983); see also SEC v. Spence & Green Chemical Co., 612 F.2d 896, 901 (5th Cir.1980) (must explain inability to obtain facts and demonstrate how postponement will correct problem; cannot rely on vague assertions regarding nature of facts to be discovered). Burlington never filed such an affidavit. Instead, it mentioned Rule 56(f) for the first time only in its memorandum in opposition to the defendant’s motion for summary judgment. A memorandum is not a substitute for an affidavit under Rule 56(f), S.A. Empresa De Viacao Aerea Rio Grandense" } ]

[ { "docid": "7928967", "title": "", "text": "False Claims Act (at H.C., supra), the government has not shown an explicit or implied agreement among the alleged co-conspirators. Although the government has established that Párente and Brady participated in the pre-selection scheme by requesting the allocation of Section 235 houses to specific parties, see Pi’s 3(g) St. ¶¶ 36, 39, these isolated incidents do not establish the meeting of minds necessary for a conspiracy. To the extent the government relies on the acts of Brady and Párente as constituting separate violations of the Fair Housing Act, distinct from a conspiracy theory, this court is not convinced that a disparate impact analysis would be appropriate, see Huntington, 844 F.2d at 934, nor has the government attempted to link Brady and Parente’s acts with the disparate effect of the 235 program. Furthermore, the government has failed to establish intentional discrimination. See discussion, supra. Accordingly, the government’s motion for summary judgment against Brady and Párente is denied. D. Defendants’ Cross-motion for Additional Discovery The Village Defendants, Brady and Párente cross-move pursuant to Federal Rule of Civil Procedure 56(f), requesting that this court defer ruling on the government’s motion for summary judgment on the Fair Housing Act claim to allow them to conduct additional discovery. Under Rule 56(f), a court may, inter alia, order a continuance to permit a party opposing a summary judgment motion to conduct discovery to ascertain “facts essential to justify the party’s opposition ...” Fed.R.Civ.P. 56(f). “[A] party seeking such discovery must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.” Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414, 422 (2d Cir.1989) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985)). The Village Defendants support their motion by submitting an affidavit of counsel, William H. Pauley III, requesting additional time to depose certain defendants as" }, { "docid": "2866974", "title": "", "text": "that the price otherwise would have been $7.2 million lower. (Goed-koop Aff. ¶ 3) The affidavit goes on to say, however, that Moret’s findings as to the open items are set forth in the two Moret reports discussed above. (Id. ¶ 4) The affidavit thus makes clear that Goedkoop’s pivotal assertion — that there was a $7.2 million overstatement — is based on the two reports which, for the reasons previously discussed, do not adequately support the contention. In consequence, even accepting the truth of his assertion that the open items were not accounted for, there is no legally sufficient basis for concluding that their inclusion would have made any material difference. The only remaining issue is whether the entry of summary judgment against the guarantors is appropriate notwithstanding that there has been no discovery in this case. As defendants recognize, this is governed by FED.R.Crv.P. 56(f), which provides: “Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” This Circuit adheres to a four-part test for determining the sufficiency of an affidavit requesting additional time to conduct discovery in order to respond to a summary judgment motion: “The affidavit must include the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of material fact; what efforts the affiant has made to obtain those facts; and why those efforts were unsuccessful.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994). Accord, e.g., Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989). The evidence now before the Court is insufficient to raise a genuine issue of fact material to the claim that the Eisner balance sheets materially overstated the book value of the transferred assets, principally because the" }, { "docid": "7928968", "title": "", "text": "Procedure 56(f), requesting that this court defer ruling on the government’s motion for summary judgment on the Fair Housing Act claim to allow them to conduct additional discovery. Under Rule 56(f), a court may, inter alia, order a continuance to permit a party opposing a summary judgment motion to conduct discovery to ascertain “facts essential to justify the party’s opposition ...” Fed.R.Civ.P. 56(f). “[A] party seeking such discovery must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.” Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414, 422 (2d Cir.1989) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985)). The Village Defendants support their motion by submitting an affidavit of counsel, William H. Pauley III, requesting additional time to depose certain defendants as well as non-party witnesses with respect to the question of intent. The Village Defendants also request time to conduct discovery with respect to the racial and ethnic background of individuals who submitted letters of interest to the Village in connection with the Section 235 program. Because the court finds the Village Defendants hable under a disparate impact theory, neither of these issues are relevant to the court’s disposition. Because the court denies the government’s motion for summary judgment against Brady and Párente, their request for a continuance to conduct further discovery is moot. IV. Erroneous Payment of Funds. The government’s eighth cause of action is for erroneous payment of funds with respect to CDBG payments and Section 235 mortgage subsidies made after March 22, 1984. The government asserts joint and several liability for this claim against the Village Defendants, Brady, Párente and the Homeowner Defendants (other than the Ruoccos). This claim is based on the United States’ common law right to recover funds wrongfully or erroneously paid from the federal treasury. United States v. Wurts," }, { "docid": "8661300", "title": "", "text": "anything” regarding the Chambers-Storck Company. Declaration of Martin, Ex. B (Deposition of Helene Freedman dated Oct. 9, 1990) at 6. In the absence of specific facts that dispute this evidence, plaintiffs conclusory allegations and denials in its memorandum and at oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). Although the parties were afforded ample opportunity to conduct discovery, plaintiff now belatedly suggests that further discovery is needed on this issue. Specifically, plaintiff stated at oral argument that it needed to do more investigation of defendants’ records. However, plaintiffs request for additional discovery on the issue of whether Helene Freedman had any involvement in the allegedly unlawful activity is unavailing, because plaintiff has failed to file an affidavit in accordance with Rule 56(f) of the Federal Rules of Civil Procedure (“Rule 56(f)”). Under Rule 56(f), a party opposing a motion for summary judgment on the ground that additional discovery is needed must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts. Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir.1989). Even if plaintiff had requested further discovery in its memorandum, which it did not, “[a] memorandum is not a substitute for an affidavit under Rule 56(f).” Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985). “[T]he failure to file such an affidavit under Rule 56(f) is by itself enough to reject a claim that the opportunity for discovery was inadequate.” Id. Inasmuch as plaintiff has presented no facts whatsoever creating a genuine issue of material fact for trial on the issue of whether Helene Freedman benefitted, or could have benefitted, from the allegedly illegal activity, and has failed to submit an" }, { "docid": "12505195", "title": "", "text": "been reimbursed. Clearly there is a causal connection between defendant’s behavior and plaintiffs’ injury. And finally, a decision in plaintiffs’ favor requiring the County to pay damages to plaintiffs will redress the injury complained of. B. Statute of Limitations For the reasons stated in this Court’s September 27, 1999 Decision and Order, we find that plaintiffs’ claims are not time-barred. See Community Health, 69 F.Supp.2d at 476. C. Rule 56(f) Rule 56(f) provides in relevant part: (f) .... Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Fed.R.Civ.P. 56(f). “[A] party resisting summary judgment on the ground that it needs discovery in order to defeat the motion must submit an affidavit showing ‘(1) what facts are sought [to resist the .motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue' of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.’ ” Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.1999) (quoting Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995)); see also Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994); Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414, 422 (2d Cir.1989); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985). In support of its Rule 56(f) motion, the County submits the affidavits of Irma W. Cosgriff, Senior Assistant County Attorney in the office of the Westchester County Attorney (“Cosgriff Affidavit”) with accompanying exhibits. The Cosgriff Affidavit asserts that further discovery is needed to determine “whether the capitation payments which HealthSource agreed to receive under the WCDSS contract were less than the reasonable costs associated" }, { "docid": "18985281", "title": "", "text": "56(f) is designed to facilitate a party’s ability to discover evidence supportive of a claim that has already been established, and not to facilitate the discovery of evidence that might establish a new and additional claim,” American Home Assurance Co. v. Zim Jamaica, 418 F.Supp.2d 537, 547 (S.D.N.Y.2006), courts have discretion to reject a request for further discovery if the nonmoving party forwards mere “speculation as to what potentially could be discovered.” In re Dana Corp., 574 F.3d 129, 149 (2d Cir.2009) (quoting Paddington Partners, 34 F.3d at 1138) (internal quotation marks omitted). Courts may also reject a Rule 56(f) request when it is “based on conelusory allegations that the affidavits used by the opposing party in support of its summary judgment motion are not credible.” Zim Jamaica, 418 F.Supp.2d at 547 (citing Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir.1993)). Further, if the evidence that the nonmoving party seeks “would not create an issue of material fact” that would preclude summary judgment, the request for additional discovery is “properly denied.” CIT Group/Commercial Services v. Prisco, 640 F.Supp.2d 401, 409 (S.D.N.Y.2009). See also Sage Realty Corp. v. Ins. Co. of N. Am., 34 F.3d 124, 128 (2d Cir.1994) (“The discovery sought must be material to the opposition of the summary judgment motion.”). The Second Circuit has identified four elements a party must include in its affidavit requesting additional discovery under Rule 56(f). The affidavit must explain: “(1) what facts are sought and how they are to be obtained; (2) how those facts are reasonably expected to create a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant’s efforts were unsuccessful.” Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir.2004). Accord Paddington Partners, 34 F.3d at 1137-38 (2d Cir.1994); Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414, 422 (2d Cir.1989); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985). “The failure to file an affidavit under Rule 56(f) is itself sufficient grounds to reject a" }, { "docid": "13646057", "title": "", "text": "that Stone did supervise and control INDT in the manner described. In view of the foregoing analysis, the evidence on this motion establishes that the work in which INDT and Thomas were engaged at the time of the accident was work which Stone employees were fully equipped to perform and regularly performed. It establishes also that Thomas’ individual efforts were not supervised by Stone, but that Stone did actively supervise INDT. Given the principles set forth in the Virginia eases, Stone is entitled to summary judgment dismissing the complaint unless summary judgment is precluded in view of Thomas’ protestation that he has not yet conducted discovery. Rule 56(f) Rule 56(f), Fed.R.CivP., provides: “Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” This Circuit adheres to a four-part test for determining the sufficiency of an affidavit requesting additional time to conduct discovery in order to respond to a summary judgment motion: “The affidavit must include the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of material fact; what efforts the affiant has made to obtain those facts; and why those efforts were unsuccessful.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994). Accord, e.g., Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989). Plaintiffs insurmountable obstacle here is his failure to conduct discovery in a timely manner. This action was commenced in New York Supreme Court, Bronx County, evidently in June 1995. The defendant was served on July 14, 1995 and removed the action to this Court on or about August 9, 1995. On October 23, 1995, after a pretrial conference at which the defendant raised the statutory employer issue, the Court directed the completion of" }, { "docid": "15774039", "title": "", "text": "asserts that summary judgment is premature because she has not yet conducted discovery. Although she cites no authorities in support of this argument, I treat this as a motion pursuant to Rule 56(f), which provides: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. In this Circuit, “a party seelring such discovery must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) .what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those' efforts.” Hudson River Sloop Clearwater, Inc. v. Dept. of the Navy, 891 F.2d 414, 422 (2d Cir.1989) (“Hudson”) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985)). In the present case, the affidavit of plaintiffs attorney, Peter Pryor, contains a general, one-sentence statement that provides no hint at why plaintiff cannot oppose summary judgment without discovery. See Pryor Aff., at ¶ 7. Clearly, such a general, vague, and conclusory request— bereft of reason — is insufficient to satisfy the specific requirements of Rule 56(f). See Fed.R.Civ.P. 56(f); see also Hudson 891 F.2d at 422 (listing four criterion that must be met); Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994) (“Rule 56(f) is not a shield against all summary judgment motions. Litigants seeking relief under the rule must show that the material sought is germane to the defense....”) (internal quotations omitted); United States v. Private Sanitation Ind. Ass’n of Nassau/Suffolk, Inc., 995 F.2d 375, 377 (2d Cir.1993) (affirming Rule 56(f) denial when affidavit did not describe “in specific terms evidence that might be forthcoming and would demonstrate that a genuine issue" }, { "docid": "17276146", "title": "", "text": "in light of Defendants’ representations that they had fully complied with the Court’s order of December 15, 2003. On January 29, 2004, the Court denied Olle’s request that Defendants be directed to produce certain documents identified on Defendants’ privilege log on the basis that Olle had failed to demonstrate that the materials in question were not privileged as Defendants claimed. Rule 56(f), Fed.R.Civ.P., provides that when a party facing an adversary’s motion for summary judgment reasonably advises the court that it needs discovery to be able to present facts needed to defend the motion, the court should defer decision of the motion until the party has had the opportunity to take discovery and rebut the motion. See Commercial Cleaning Sens., L.L.C. v. Colin Sen. Systems, Inc., 271 F.3d 374, 386 (2d Cir.2001) (citing Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995); Hellstrom v. U.S. Dep’t of Veteran’s Affairs, 201 F.3d 94, 97 (2d Cir.2000)). To obtain relief under Rule 56(f), the party seeking additional discovery must submit an affidavit or declaration detailing (1) the nature of the uncompleted discovery; (2) how the facts sought are reasonably expected to create a genuine issue of material fact; (3) what efforts the affiant has made to obtain those facts; and (4) why those efforts were unsuccessful. See Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.1999); Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994); Hudson River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 422 (2d Cir.1989); see also Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 286 (2d Cir.2000) (It is proper to deny discovery where the plaintiffs “did not delineate what, if any, additional discovery they needed or wanted to pursue, and how such discovery could raise an issue of material fact.”); Contemporary Mission Inc. v. U.S. Postal Sen., 648 F.2d 97, 102 (2d Cir.1981) (“ ‘An opposing party’s mere hope that further evidence may develop prior to trial is an insufficient basis on which to justify the denial of the [summary judgment] motion.’ ”) (quoting Neely v." }, { "docid": "4102240", "title": "", "text": "¶ 34; Leland Aff., Ex. B.) Rule 56(f) provides an important check on a moving party’s ability to obtain summary judgment after only a limited opportunity for discovery. The Rule states: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Fed.. R. Civ. Pro. 56(f). Accordingly, summary judgment is appropriate only “after adequate time for discovery,” Celotex, 477 U.S. at 322, 106 S.Ct. 2548, and should be denied “where the nonmoving party has not had the opportunity to discover information that is essential to his opposition,” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. A party seeking to avoid summary judgment on the ground that it needs additional discovery in order to defeat the motion must file an affidavit explaining: “1) the nature of the uncompleted discovery, i.e., what facts are sought and how they are to be obtained; and 2) how those facts are reasonably expected to create a genuine issue of material fact; and 3) what efforts the affiant has made to obtain those facts; and 4) why those efforts were unsuccessful.” Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985) (Winter, J.); accord Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.1999); Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994); Hudson River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 422 (2d Cir.1989). Recognizing that Rule 56(f) is an important safeguard against improvident or premature motions for summary judgment, courts generally avoid overly technical rulings under this subdivision and apply it with a spirit of liberality. See, e.g., Valley Nat'l Bank v. Greenwich, 254 F.Supp.2d 448, 454 (S.D.N.Y.2003); Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 945 F.Supp. 693, at 706 (S.D.N.Y.1996) (citing 10A Charles A. Wright," }, { "docid": "1764105", "title": "", "text": "Maida submitted evidence supporting, at least to some extent, his claim of physical disability, LINA was not obliged to credit that evidence given the strong contrary evidence at its disposal in the form of the reports of Dr. Torriello and Mr. Kopelman. Plaintiff seeks to avoid this conclusion by attacking the sufficiency of the examination conducted by Dr. Torriello and contending that Mr. Kopelman wrote a negative report only after plaintiff declined his offer to become plaintiffs physical therapist. (Maida Reply Aff. at 2-3) There is no suggestion, however, that these assertions were brought to LINA’s attention at any point. As review of a benefit denial under the arbitrary and capricious standard is limited to the record that was before the decision maker, they may not be considered in this Court. Miller, 72 F.3d at 1071. Plaintiffs final contention is that summary judgment in favor of LINA is premature because he has not yet deposed the claims adjuster and the physical therapist. (Pl.Mem. 5) Rule 56(f), Fed.R.Civ.P., provides in relevant part: “Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Here, plaintiff has submitted no affidavit. Even passing over this defect, however, his argument is without merit. This Circuit adheres to a four-part test for determining the sufficiency of an affidavit requesting additional discovery in order to respond tó a summary judgment motion: “The affidavit must include the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of material fact; what efforts the affiant has made to obtain those facts; and why those efforts were unsuccessful.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994). Accord, e.g., Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989)." }, { "docid": "22380771", "title": "", "text": "International Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir.1990) (rejecting claim that district court had impermissibly denied opportunity to present additional testimony upon review of magistrate’s report); see also Alexander v. Evans, 88 Civ. 5309, 1993 WL 427409, at *18 n. 8, 1993 U.S.Dist. LEXIS 14560, at *20 n. 8 (S.D.N.Y. Sept. 30, 1993) (declining to consider affidavit of expert witness that was not before magistrate). Even if a Rule 56(f) affidavit had been filed in opposition to the First Summary Judgment Motion, and with respect to the Second Summary Judgment Motion, the District Court did not abuse its discretion by refusing to grant additional time for discovery. This Circuit has established a four-part test for the sufficiency of an affidavit submitted pursuant to Rule 56(f). The affidavit must include the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of material fact; what efforts the affiant has made to obtain those facts; and why those efforts were unsuccessful. Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir.1989); Burlington, 769 F.2d at 926. There is no provision in the Dealer-Manager Agreement affording Econoeom the right to monitor the reasonableness of attorneys’ fees subject to the Indemnity Provision. Econoeom premised its entitlement to discovery on this issue on the “implied covenant of good faith and fair dealing under New York law [t]hat is implied into every contract.” (App. at 357.) However, at oral argument on the Second Summary Judgment Motion, Econoeom stated explicitly that it was not contending that there had been a breach of this covenant. The purpose of the requested discovery was to enable Econoeom to determine whether it might have a claim that the fees were unreasonable. (App. at 357-58.) Econoeom’s argument is that it should be allowed to find out if it has a claim, rather than that it has a claim for which it needs additional discovery. Such divagation is decidedly not the object of the discovery procedures outlined in the Federal Rules of Civil Procedure. See Gray v." }, { "docid": "15774038", "title": "", "text": "a summary judgment motion “must be carefully scrutinized” for circumstantial evidence about the defendants’ state of mind and those factors that motivated the challenged course of action. See Chertkova, 92 F.3d at 87; Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d. Cir.1994). Where such subjective issues are “squarely implicated,” a multitude of factual inferences may arise where, “reasonable persons may differ in their resolution.” Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir.1984). Subjective questions such as motive, intent, or conscience may compel a trial “inasmuch as cross-examination is the best means of testing the credibility of the evidence.” 10A ChaRles A. WRIght & Arthur R. Miller, Federal Practioe and Procedure § 2727, at 137-(1983); see also Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (summary procedure used sparingly when motive and intent of the defendant play leading roles). It is with these considerations in mind that I address defendants’ motions for summary judgment. C. Is Summary Judgment Premature? As a threshold matter, plaintiff asserts that summary judgment is premature because she has not yet conducted discovery. Although she cites no authorities in support of this argument, I treat this as a motion pursuant to Rule 56(f), which provides: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. In this Circuit, “a party seelring such discovery must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) .what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those' efforts.” Hudson River Sloop Clearwater, Inc. v. Dept. of the Navy, 891 F.2d 414," }, { "docid": "23086504", "title": "", "text": "court instead dismissed the case under Federal Rule of Civil Procedure 12(b)(1), without explicitly responding to or ruling-on appellants’ request. In resisting a motion to dismiss under Rule 12(b)(1), plaintiffs are permitted to present evidence (by affidavit or otherwise) of the facts on which jurisdiction rests. See Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). In addition, courts generally require that plaintiffs be given an opportunity to conduct discovery on these jurisdictional facts, at least where the facts, for which discovery is sought, are peculiarly within the knowledge of the opposing party. See id. Although a motion to dismiss for lack of jurisdiction cannot be converted into a Rule 56 motion, a court may nonetheless look to Rule 56(f) for guidance in considering the need for discovery on jurisdictional facts. See id.; see also Exch. Nat’l Bank v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir.1976) (“[A] body of decisions has developed under Rule 56 that offer guidelines which assist in resolving the problem encountered if the affidavits submitted on a 12(b)(1) motion should reveal the existence of factual problems.”). To request discovery under Rule 56(f), a party must file an affidavit describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant’s efforts were unsuccessful. See Hudson River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 422 (2d Cir.1989). If the district court denies the party’s request — even implicitly — we review that de- cisión under an abuse of discretion standard. See Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 167-68 (2d Cir.2003); First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172, 175 (2d Cir.1998) (reviewing for abuse of discretion because district court implicitly denied motion to compel discovery). Analogizing to the Rule 56(f) case law, we find that while plaintiffs submitted an affidavit requesting discovery of particular documents and depositions, they failed" }, { "docid": "13646058", "title": "", "text": "order as is just.” This Circuit adheres to a four-part test for determining the sufficiency of an affidavit requesting additional time to conduct discovery in order to respond to a summary judgment motion: “The affidavit must include the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of material fact; what efforts the affiant has made to obtain those facts; and why those efforts were unsuccessful.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994). Accord, e.g., Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989). Plaintiffs insurmountable obstacle here is his failure to conduct discovery in a timely manner. This action was commenced in New York Supreme Court, Bronx County, evidently in June 1995. The defendant was served on July 14, 1995 and removed the action to this Court on or about August 9, 1995. On October 23, 1995, after a pretrial conference at which the defendant raised the statutory employer issue, the Court directed the completion of all discovery by May 1, 1996. Defendant initially moved for summary judgment on or about December 28, 1995, more than six months after the commencement of the action. The motion was renewed on March 7, 1995. Yet in his opposing affidavit, sworn to March 18, 1996, plaintiffs counsel stated that “little or no discovery has been had.” (Saftler Aff. ¶ 12) Indeed, the only discovery undertaken by plaintiff was the service, on March 5,1996, of interrogatories, answers to which were due on April 8, 1996. Plaintiff neither has submitted the answers in support of his motion nor complained of any failure to respond or inappropriate objections by defendant. Significantly, although plaintiff has had the affidavit upon which defendant bases its motion since late December, it has never sought, and does not now seek, to depose the affiant. Plaintiffs conduct has been dilatory. He knew at least as early as October that the defendant would assert the statutory employer defense and knew from defendant’s first motion last December exactly what the defendant’s argument was. Yet he" }, { "docid": "23086505", "title": "", "text": "submitted on a 12(b)(1) motion should reveal the existence of factual problems.”). To request discovery under Rule 56(f), a party must file an affidavit describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant’s efforts were unsuccessful. See Hudson River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 422 (2d Cir.1989). If the district court denies the party’s request — even implicitly — we review that de- cisión under an abuse of discretion standard. See Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 167-68 (2d Cir.2003); First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172, 175 (2d Cir.1998) (reviewing for abuse of discretion because district court implicitly denied motion to compel discovery). Analogizing to the Rule 56(f) case law, we find that while plaintiffs submitted an affidavit requesting discovery of particular documents and depositions, they failed to show how the information they hoped to obtain from this discovery would bear on the critical issue of who funded the Plan. As discussed above, this issue turns more on how the School District viewed the settlement agreement than on whether the settlement agreement legally restricted the union’s use of the money. Yet plaintiffs’ discovery request focused almost entirely on information held by the union and the insurance broker defendants. Plaintiffs did ask to subpoena “relevant documents and records of [the School District] (to obtain records and internal communications on the subject matter during 1993 to 1997),” but they did not describe what they hoped these documents and records would show or how this would impact the court’s decision. Although the district court did not explicitly rule on plaintiffs’ discovery request, it implicitly denied that request by making the findings of fact necessary to dismiss for lack of jurisdiction. Since appellants were unable to demonstrate that additional discovery was needed in order to decide the jurisdictional issue, the district court did not abuse its" }, { "docid": "8661301", "title": "", "text": "needed must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts. Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir.1989). Even if plaintiff had requested further discovery in its memorandum, which it did not, “[a] memorandum is not a substitute for an affidavit under Rule 56(f).” Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985). “[T]he failure to file such an affidavit under Rule 56(f) is by itself enough to reject a claim that the opportunity for discovery was inadequate.” Id. Inasmuch as plaintiff has presented no facts whatsoever creating a genuine issue of material fact for trial on the issue of whether Helene Freedman benefitted, or could have benefitted, from the allegedly illegal activity, and has failed to submit an affidavit pursuant to Rule 56(f) in support of its request for further discovery on this issue, summary judgment would have to enter for Helene Freedman and against plaintiff on all claims against Helene Freedman, quite apart from the other, independent grounds for dismissal of the claims against her. Conclusion The Motion for Summary Judgment (filed Sept. 12, 1991) (Doc. # 54) of defendants Seymour Freedman, Helene Freedman and S. Freedman Electric, Inc. is GRANTED absent objection with respect to Counts 1 and 2 and that part of Count 6 brought pursuant to Conn.Gen.Stat. § 22a-451. The motion is otherwise granted in its entirety for the reasons stated above. Summary judgment shall enter for the Freedman defendants and against plaintiff on all counts in the Complaint. It is so ordered. . See Plaintiffs Revised Response to Defendant Freedman's Request for Admissions (dated Nov. 2, 1989). . Plaintiff Armotek Industries, Inc.’s Memorandum in Opposition to Defendants Seymour Freedman, Helene Freedman and S. Freedman Electric, Inc.’s Motion for Summary Judgment (filed Oct. 31, 1991) (“Plaintiff's Opposition”) at 5" }, { "docid": "22270472", "title": "", "text": "a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition [to a motion for summary judgment], the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Thus, as we often have said, a party resisting summary judgment on the ground that it needs discovery in order to defeat the motion must submit an affidavit showing “ ‘(1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.’ ” Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995) (quoting Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir.1989)); accord, Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985). Indeed, the failure to file such an affidavit is fatal to a claim such as plaintiff makes here even if the party resisting the motion for summary judgment alluded to a claimed need for discovery in a memorandum of law. Paddington Partners, 34 F.3d at 1137. The affidavits plaintiff submitted in the district court did not contend that any discovery was required to meet the defendants’ motions, let alone satisfy the test articulated most recently in Meloff. Indeed, plaintiff did not even hint below at any need for discovery in order to resist defendants’ motions. In consequence, the court below plainly did not err in passing on the merits of the motions in the absence of any discovery. Ill Plaintiff’s attack on the dismissal of his Rule 10b-5 claim against Nu-Tech is limited to the claim that he was deceived in making his December 24, 1996 and February" }, { "docid": "22270471", "title": "", "text": "the pleadings.” In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir.1985), cert. denied sub nom. M.J.M. Exhibitors, Inc. v. Stern, 475 U.S. 1015, 106 S.Ct. 1195, 89 L.Ed.2d 310 (1986). In this case, it was plaintiff who submitted the affidavit relied upon by the district court and who thus invited Judge Stanton to rely not only on the complaint, but upon the more elaborate explication of plaintiffs grievance contained in his affidavit. He certainly cannot be heard to claim that he was surprised when the district court accepted his invitation. Indeed, the district court arguably would have erred in declining to do so. See Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338-39 (2d Cir.1974) (error to disregard affidavits submitted by plaintiff in opposition to a motion to dismiss). In consequence, the motions properly were converted. Rule 56(f) Plaintiffs claim that the court below erred in deciding the motions without giving him an opportunity to conduct discovery also lacks merit. Rule 56(f) provides: “Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition [to a motion for summary judgment], the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Thus, as we often have said, a party resisting summary judgment on the ground that it needs discovery in order to defeat the motion must submit an affidavit showing “ ‘(1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.’ ” Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995) (quoting Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d" }, { "docid": "3775852", "title": "", "text": "any of plaintiffs’ claims on a theory of vicarious liability. Cf. McNally v. Yarnall, 764 F.Supp. 838, 852-53 (S.D.N.Y.1991). VI. Need for Additional Discovery Plaintiffs also suggest, in their memorandum of law in opposition to CompuServe’s summary judgment motion, that additional discovery is needed and should preclude the grant of summary judgment. Fed.R.Civ.P. 56(f) provides that when the party opposing a motion for summary judgment cannot “present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit ... discovery to be had.” In order to persuade the Court to grant a request for additional discovery, plaintiffs would have to “file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.” Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985)). The Court may reject a request for further discovery pursuant to Rule 56(f) if no affidavit is filed or if the request is based on pure speculation as to what would be discovered. Burlington Coat Factory, 769 F.2d at 926-927. In the instant action, plaintiffs have failed to fulfill the requirements enumerated by the Second Circuit in Hudson River Sloop Clearwater and Burlington Coat Factory. Plaintiffs have simply asserted, not in an affidavit but in their memorandum of law, that “[ljittle in the way of discovery has been undertaken” and that “CompuServe has produced documents in response to the plaintiff’s First Document Request, but no depositions of the parties have taken place.” Memorandum of Law in Opposition to Defendant CompuServe’s Motion for Summary Judgment at 2. Plaintiffs have not specified what facts they wish to discover through depositions or other means and how these are to be obtained, how these are reasonably expected to" } ]

[ { "docid": "22678681", "title": "", "text": "meaning of § 6010. Equally telling is the fact that the Secretary has specifically rejected the position of the Solicitor General. The purpose of the Act, according to the Secretary, is merely “to improve and coordinate the provision of services to persons with developmental disabilities.” 45 CFR § 1385.1 (1979). The Secretary acknowledges that “[n]o authority was included in [the 1975] Act to allow the Department to withhold funds from States on the basis of failure to meet the findings [of §6010].” 45 Fed. Reg. 31006 (1980). If funds cannot be terminated for a State’s failure to comply with § 6010, § 6010 can hardly be considered a “condition” of the grant of federal funds. The Secretary’s interpretation of § 6010, moreover, is well supported by the legislative history. In reaching the compromise on § 6010, the Conference Committee rejected the Senate’s proposal to terminate federal funding of States which failed to comply with the standards enumerated in Title II of the Senate’s bill, see n. 15, supra. By eliminating that sanction, Congress made clear that the provisions of § 6010 were intended to be hortatory, not mandatory. The fact that Congress granted to Pennsylvania only $1.6 million in 1976, a sum woefully inadequate to meet the enormous financial burden of providing “appropriate” treatment in the “least restrictive” setting, confirms that Congress must have had a limited purpose in enacting § 6010. When Congress does impose affirmative obligations on the States, it usually makes a far more substantial contribution to defray costs. Harris v. McRae, supra. It defies common sense, in short, to suppose that Congress implicitly imposed this massive obligation on participating States. Our conclusion is also buttressed by the rule of statutory construction established above, that Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds. That canon applies with greatest force where, as here, a State’s potential obligations under the Act are largely indeterminate. It is difficult to know what is meant by providing “appropriate treatment” in the" } ]

[ { "docid": "7287515", "title": "", "text": "apply abroad. Id. at 259, 111 S.Ct. 1227. Citing Aramco, the Supreme Court recently reiterated these principles in Morrison v. National Australia Bank Ltd., — U.S. —, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), where it held that § 10(b) of the Securities Exchange Act of 1934 does not apply extraterritorially. Id. at 2877-78, 2883. The Court reasoned that “[t]he re- suits of judicial-speculation-made-law — divining what Congress would have wanted if it had thought of the situation before the court — demonstrate the wisdom of the presumption against extraterritoriality.” Id. at 2881. “Rather than guess anew in each case,” the Court continued, “we apply the presumption in all cases, preserving a stable background against which Congress can legislate with predictable effects.” Id. Similarly, in Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), the Court concluded that judges must apply a “plain statement rule” before upsetting the standard constitutional balance of federal and state powers. Id. at 460-61, 111 S.Ct. 2395. “[I]f Congress intends to alter the usual constitutional balance,” the Court explained, “it must make its intention to do so unmistakably clear in the language of the statute.” Id. at 460, 111 S.Ct. 2395 (internal quotation marks omitted). “In traditionally sensitive areas,” the Court continued, “the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” Id. at 461, 111 S.Ct. 2395 (internal quotation marks omitted). Aramco, Morrison, and Gregory all involved the “longstanding principle” that “ ‘legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ” Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (emphasis added) (citation omitted). However, given that the Constitution entrusts foreign affairs to the federal political branches, see U.S. Const, art. I, § 8, els. 1, 11-15; art. II, § 2, els. 1-2, limits state power over foreign affairs, see id. art. I, § 10, and establishes the supremacy of federal enactments over state law, see id. art. VI, cl. 2," }, { "docid": "7854847", "title": "", "text": "affirmative obligation on the States to provide certain kinds of treatment to the disabled, see, e.g., Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 16-17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); or whether, in passing the Age Discrimination in Employment Act, Congress meant to override the States’ traditional authority to “determine the qualifications of their most important government officials,” Gregory v. Ashcroft, 501 U.S. at 463, 111 S.Ct. 2395. The plain statement rule has not been applied to legislation that does not interfere with traditional state authority, such as an Internal Revenue Code provision allowing the Commissioner of Internal Revenue to require a state official to honor a levy on the salary of a state employee who is delinquent in payment of his federal taxes, see Sims v. United States, 359 U.S. 108, 112-13, 79 S.Ct. 641, 3 L.Ed.2d 667 (1959). See also Reich v. New York, 3 F.3d 581, 589-90 (2d Cir.1993) (requirement that state pay overtime to state law enforcement officials under the Fair Labor Standards Act did not so alter the federal-state balance as to require a clear statement), cert. denied, 510 U.S. 1163, 114 S.Ct. 1187, 127 L.Ed.2d 537 (1994), overruled by implication on other grounds by Seminole Tribe v. Florida, 517 U.S. at 59-66, 116 S.Ct. 1114. In the FCA, we see no alteration of “the usual constitutional balance of federal and state powers” such as to require application of the plain statement rule. The Act does not intrude into any area of traditional state power. The goal of the statute is simply to remedy and deter procurement of federal funds by means of fraud. The States have no right or authority, traditional or otherwise, to engage in such conduct. Accordingly, we reject the State’s contention that the plain statement rule applies, and we turn to the question of the proper interpretation of the FCA using the usual standards of statutory construction. Under the usual standards, although “in common usage[ ] the term ‘person’ does not include the sovereign, ... there is no hard and fast rule of exclusion.” United States v." }, { "docid": "14044017", "title": "", "text": "Lane, 124 S.Ct. at 1992. The plaintiffs also cite to the Court's decision in Hunter v. Underwood as evidence of a record of constitutional violations with regard to felon disenfranchisement provisions. A key problem with this argument is that the Court did not decide Hunter until 1985, three years after the 1982 amendments to the Voting Rights Act. Thus, Congress could not have relied on Hunter when it enacted the amended Section 2 of the Voting Rights Act. Moreover, evi dence of a purposefully discriminatory criminal disenfranchisement law in Alabama could not justify congressional regulation of Florida's law, which was enacted for race-neutral reasons. . We also note that application of the VRA to Florida’s felon disenfranchisement provision could raise federalism concerns in that it significantly alters the constitutionally mandated balance of power between the States and the Federal Government. See Gregory v. Ashcroft, 501 U.S. 452, 457-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Whenever Congress intrudes upon \"a decision of the most fundamental sort for a [State], ... ‘it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides’ this balance.” Gregory v. Ashcroft, 501 U.S. at 461, 111 S.Ct. 2395 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). Congress's intent must be \"unmistakably clear in the language of the statute.” Id. at 460-61, 111 S.Ct. 2395. In Gregory, Missouri state court judges challenged a provision of the Missouri Constitution that required certain judges to retire at the age of seventy as being in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (ADEA). After concluding that \"the authority of the people of the States to determine the qualifications of their most important government officials ... lies at the heart of representative government,” the Court found that state judges were not covered by the ADEA because Congress did not make their inclusion unmistakably clear. Id. at 467, 111 S.Ct. 2395. As in Gregory, the balance of power between the States and the Federal Government" }, { "docid": "13079993", "title": "", "text": "465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984)_ Congress should make its intention “clear and manifest” if it intends to pre-empt the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), or if it intends to impose a condition on the grant of federal moneys, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 16, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981); South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171 (1987). “In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). Will, 491 U.S. at 65, 109 S.Ct. at 2309. The Court has thus instructed that where application of a federal statute to a state “would upset the usual constitutional balance of federal and state powers[,] ... ‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ this balance.” Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2401, 115 L.Ed.2d 410 (1991) (quoting Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147). See also United States v. Lopez, — U.S. -, -, 115 S.Ct. 1624, 1655, 131 L.Ed.2d 626 (1995) (Souter, J., dissenting) (clear statement rule applicable where case “implicat[es] Congress’s historical reluctance to trench on state legislative prerogatives or to enter into spheres already occupied by the States.”); Davies Warehouse Co. v. Bowles, 321 U.S. 144, 154, 64 S.Ct. 474, 480, 88 L.Ed. 635 (1944) (“The existence and force and function of established institutions of local government are always in the consciousness of lawmakers and, while their weight may vary, they may never be completely overlooked in the task of interpretation.”). It cannot be disputed that the management of state prisons is a core state function. As" }, { "docid": "9033927", "title": "", "text": "it must make its intention to do so unmistakably clear in the language of the statute.\" Gregory v. Ashcroft , 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Although Gregory did not address this constitutional balance in the grant context, the Court explained that this clear statement rule \"applie[s] in other contexts,\" including any \"traditionally sensitive areas, such as legislation affecting the federal balance.\" Id. at 461, 111 S.Ct. 2395. The Fourth Circuit, citing Supreme Court precedent, extended the clear statement rule specifically to federal grants. Com. of Va., Dep't of Educ. v. Riley , 106 F.3d 559, 566 (4th Cir. 1997) (en banc). The Riley Court emphasized the importance of such a rule where the grant condition required the surrender of a critical power reserved to the states by the Tenth Amendment. Id. The Supreme Court has emphasized that the police power is one such critical state function. See, e.g. , Gonzales v. Oregon , 546 U.S. 243, 270, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (states have \"great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons\"). The Challenged Considerations upset the constitutional balance between state and federal power by requiring state and local law enforcement to partner with federal authorities. These conditions infringe upon the state police power. The Challenged Considerations also upset the constitutional balance by requiring state and local participation in a historically federal function-immigration enforcement. See, e.g. , Arizona v. United States , 567 U.S. 387, 394, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (\"The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.\"). Accordingly, the dispositive question before this Court is whether Congress has \"unmistakably\" authorized the Attorney General to impose the Challenged Considerations. CHP grants are awarded under the COPS statute, which authorizes the Attorney General to issue grants to state and local governments to rehire law enforcement officers for deployment in community policing. 34 U.S.C. § 10381(a), (b)(1)-(2). Subsection (c) says \"the Attorney General may" }, { "docid": "19968649", "title": "", "text": "statements for their trustworthiness is arguable, the district court did not abuse its broad discretion by allowing the LEAs’ survey responses only to demonstrate Missouri’s knowledge of possible problems. IV. CONCLUSION We reverse the district court’s orders granting summary judgment, and remand for reconsideration in accordance with this opinion. The district court’s evidentiary rulings are affirmed. . Pursuant to the National Voter Registration Act of 1993 (NVRA), \"[e]ach state shall designate a State officer or employee as the chief State election official to be responsible for coordination of State responsibilities under [the NVRA].” 42 U.S.C. § 1973gg-8. Missouri has designated its Secretary of State to perform this function. See Mo.Rev.Stat. § 115.136(1). . The Elections Clause provides delegation for prescribing rules governing federal elections. See U.S. Const, art. I, § 4, cl. 1 (\"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” (emphasis added)). Missouri contends, although Congress has authority to disrupt the federal/state balance of authority over elections, in order to do so, Congress \"must make its intention to do so unmistakably clear in the language of the statute.” (quoting Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)). The United States distinguishes Gregory, arguing the issue before the Court in Gregory, unlike the case before us, \"involved the authority of states ‘to determine the qualifications of their most important government officials.' ” (quoting Gregory, 501 U.S. at 463, 111 S.Ct. 2395). The question in Gregory was whether the Missouri constitutional requirement that state judges retire at seventy violated the Age Discrimination in Employment Act. Id. at 455, 111 S.Ct. 2395. The United States further points out \"the regulation of federal elections is not one of the inherent powers that the Tenth Amendment reserves to the states.” (citing U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802-05, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995)). We recognize the direct" }, { "docid": "22533031", "title": "", "text": "the duty of \"federal courts to be certain of Congress's intent before finding that federal law overrides\" the \"usual constitutional balance of federal and state powers,\" Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410. This principle applies to federal laws that punish local criminal activity, which has traditionally been the responsibility of the States. This Court's precedents have referred to basic principles of federalism in the Constitution to resolve ambiguity in federal statutes. See, e.g.,United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488;Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902. Here, the ambiguity in the statute derives from the improbably broad reach of the key statutory definition, given the term-\"chemical weapon\"-that is being defined, the deeply serious consequences of adopting such a boundless reading, and the lack of any apparent need to do so in light of the context from which the statute arose-a treaty about chemical warfare and terrorism, not about local assaults. Thus, the Court can reasonably insist on a clear indication that Congress intended to reach purely local crimes before interpreting section 229's expansive language in a way that intrudes on the States' police power. Pp. 2087 - 2090. (2) No such clear indication is found in section 229. An ordinary speaker would not describe Bond's feud-driven act of spreading irritating chemicals as involving a \"chemical weapon.\" And the chemicals at issue here bear little resemblance to those whose prohibition was the object of an international Convention. Where the breadth of a statutory definition creates ambiguity, it is appropriate to look to the ordinary meaning of the term being defined (here, \"chemical weapon\") in settling on a fair reading of the statute. See Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1. The Government's reading of section 229 would transform a statute concerned with acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults. In light of the principle that Congress does not normally intrude upon the States' police power, this" }, { "docid": "7316916", "title": "", "text": "whether Congress intended the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 42 U.S.C. §§ 6000 et seq., to “impose[ ] an obligation on the States to provide, at their own expense, certain kinds of [medical] treatment.” Id. at 15, 101 S.Ct. at 1538. In the course of “discerning congressional intent,” the Court examined “the possible sources of Congress’ power to legislate,” including § 5 of the Fourteenth Amendment. Id. at 15,101 S.Ct. at 1538-39. With respect to § 5, the Court, recognizing the federalism concerns involved in inferring such an intent into an ambiguous statute, stated: “Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.” Id. at 16,101 S.Ct. at 1539. Finding no support for the lower court’s finding that Congress acted pursuant to § 5, the Court concluded that Congress did not intend to impose such financial obligations upon the States pursuant to § 5. Although facially appealing, the State’s reliance on Pennhurst is misplaced. Unlike the case at hand, the Court in Pennhurst “was resolving an issue of statutory construction, not ... a question of Congressional authority to legislate.” EEOC v. Elrod, 674 F.2d 601, 609 n. 8; accord EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983)(stating, albeit in dicta, that “[o]ur task in Pennhurst [ ] was to construe a statute, not to adjudge its constitutional validity”) (quotations and internal citations omitted). In other words, Pennhurst addressed whether Congress intended to alter the traditional federal-state balance, not whether Congress had the authority to do so once it has already unambiguously stated its intent to alter that balance. As the Court later stated in Gregory v. Ashcroft, the Pennhurst rule is a “rule of statutory construction to be applied where statutory intent is ambiguous.” 501 U.S. 452, 470, 111 S.Ct. 2395, 2406, 115 L.Ed.2d 410 (1991). Under the first prong of Seminole Tribe, however, Congress must unambiguously state its intent" }, { "docid": "14914560", "title": "", "text": "Concerns about federalism are particularly acute in this case, where the plaintiffs are using RICO to collaterally attack an administrative scheme created by state law to supplant personal injury tort claims. If Congress intended to recalibrate state and federal power in an area that has traditionally been the province of state government by placing federal courts in the position of reviewing a state agency’s handling of charges of impropriety by parties appearing in front of it, we would expect a clear statement of Congress’s intent to achieve such a result. The leading authority on this dear-statement principle is Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The plaintiffs in Gregory brought an Age Discrimination in Employment Act (“ADEA”) challenge to a provision in the Missouri constitution that required municipal judges to retire at the age of seventy. 501 U.S. at 455, 111 S.Ct. 2395. The Court held that judges were not covered by the ADEA’s definition of the term “employee,” which contains exclusions from its coverage that are ambiguous as to whether judges are protected by the ADEA. Id. at 464-67, 111 S.Ct. 2395. It acknowledged that Congress “holds a decided advantage” within the Constitution’s federalist structure by virtue of the Supremacy Clause, and that it “may legislate in areas traditionally regulated by the States.” Id. at 460, 111 S.Ct. 2395. Nonetheless, this power is an “extraordinary” one that “Congress does not exercise lightly.” Id. Moreover, the claims in Gregory raised particularly serious federalism concerns because the appointment of judges is “a decision of the most fundamental sort for a sovereign entity.” Id. Accordingly, the Court applied a “plain statement rule” when interpreting the ADEA in order to avoid a potential conflict between the statute and the Constitution. Id. at 460-61, 111 S.Ct. 2395. The Gregory Court relied on prior decisions invoking this interpretive canon in a variety of contexts to justify relying upon it when interpreting the ADEA. To these decisions, we can add the Hunt and Apex Hosiery cases. As mentioned earlier, one of the historic concerns of courts construing the private right" }, { "docid": "7854845", "title": "", "text": "turn to the remaining question, over which we exercise pendent appellate jurisdiction, of whether qui tam suits against the States are authorized by the Act. C. Applicability of the False Claims Act to the States The question is whether “person” in § 3729(a), the section imposing liability, includes States. At the outset, we note the State’s contention that we should apply the “plain statement” rule and decline to construe § 3729(a) as exposing the States to liability absent the clearest of legislative statements that that was Congress’s intent. We reject this contention. The “plain statement” rule is that “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); see id. at 349 n. 16, 92 S.Ct. 515 (collecting cases). The Supreme Court has never held that this principle is applicable in every instance in which it is argued that a statute imposes liability on the States. Cf. Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 205, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991) (refusing to adopt a “per se rule prohibiting the interpretation of general liability language to include the States, absent a clear statement by Congress to the effect that Congress intends to subject the States to the cause of action”). Rather, the Court has applied the plain statement rule only when the effect of the statute would be to intrude on the States’ traditional authority and “upset the usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The rule has thus been applied to such questions as whether, in enacting a criminal statute, Congress meant to “render[ ] traditionally local criminal conduct a matter for federal enforcement and ... dramatically intrude[ ] upon traditional state criminal jurisdiction,” United States v. Bass, 404 U.S. at 350, 92 S.Ct. 515; or whether, in passing the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010, Congress intended to impose an" }, { "docid": "14130458", "title": "", "text": "right to control fishing and other activities on its navigable waters. Montana, 450 U.S. at 552, 101 S.Ct. 1245 (internal quotation marks omitted); see also Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). This “super-strong clear statement rule” reflects important structural considerations in the relationship between the states and the federal government. It “assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). When Congress takes away important incidents of a state’s sovereignty, it must speak plainly, not only to show that it has carefully considered the issue, but also to ensure political accountability. Just as Congress must make “unmistakably clear in the language of the statute” its intent to abrogate a state’s Eleventh Amendment immunity, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), so too must it make “unmistakably clear” an intent to alter the usual federal-state balance with respect to a “traditional and essential state function.” Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); see also Gregory, 501 U.S. at 460-61, 111 S.Ct. 2395. Just this term, the Supreme Court reminded us that the clear statement rule applies whenever an interpretation of a statute “would result in a significant impingement of the States’ traditional and primary power over land and water use.” Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 684, 148 L.Ed.2d 576 (2001). In Solid Waste, the Court struck down the Army Corps of Engineers’ “Migratory Bird Rule.” See 51 Fed.Reg. 41,217 (Nov. 13, 1986) (bureaucratic power-grab over intrastate waters where migratory birds stop to drink). The Clean Water -Act defined “navigable waters” as “the waters of the United States, including the territorial seas,” 33 U.S.C. § 1362(7), a definition that clearly did not include non-navigable, isolated, intrastate waters. Even if the statute were not clear, the" }, { "docid": "1047335", "title": "", "text": "there. It is undisputed that the regulation of the practice of law is traditionally the province of the states. Federal law “may not be interpreted to reach into areas of State sovereignty unless' the language of the federal law compels the intrusion.” City of Abilene v. FCC, 164 F.3d 49, 52 (D.C.Cir.1999). Otherwise put, “if Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistak ably clear in the language of the statute.’ ” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). By now it should be abundantly plain that Congress has not made an intention to regulate the practice of law “unmistakably clear” in the language of the GLBA. In Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), citing, inter alia, Will and Atascadero State Hospital, the Supreme Court held that [t]his plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere. 501 U.S. at 461, 111 S.Ct. 2395. The Commission contends that this plain statement rule of Gregory is not applicable, arguing that Gregory, which concerns a determination of qualification for state officials, involved a “decision of the most fundamental sort for a sovereign entity.” Id. at 460, 111 S.Ct. 2395. According to the Commission, the present regulation, “by contrast ... regulates the conduct of private entities or individuals; there is no regulation of States or state officials.” Reply Brief at 27. This response does not pass muster. Gregory itself quoted from Will the language in which the Supreme Court rejected an argument that the plain statement rule applied only in an Eleventh Amendment context. “ ‘Atascadero, was an Eleventh Amendment case, but a similar approach is applied in other contexts.’ ” Gregory, 501 U.S. at 461, 111 S.Ct. 2395 (quoting Will, 491 U.S." }, { "docid": "22533053", "title": "", "text": "weapons crime if committed by a U.S. citizen in Australia, we would not apply the statute to such conduct absent a plain statement from Congress.1 The notion that some things \"go without saying\" applies to legislation just as it does to everyday life. Among the background principles of construction that our cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution. It has long been settled, for example, that we presume federal statutes do not abrogate state sovereign immunity, Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), impose obligations on the States pursuant to section 5 of the Fourteenth Amendment, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 16-17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), or preempt state law, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). Closely related to these is the well-established principle that \" 'it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides' \" the \"usual constitutional balance of federal and state powers.\" Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting Atascadero, supra, at 243, 105 S.Ct. 3142). To quote Frankfurter again, if the Federal Government would \" 'radically readjust[ ] the balance of state and national authority, those charged with the duty of legislating [must be] reasonably explicit' \" about it. BFP v. Resolution Trust Corporation, 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (quoting Some Reflections, supra, at 539-540; second alteration in original). Or as explained by Justice Marshall, when legislation \"affect[s] the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.\" Bass, supra, at 349, 92 S.Ct. 515. We have applied this background principle when construing federal statutes that touched on several areas of traditional state responsibility. See Gregory, supra, at 460, 111 S.Ct. 2395" }, { "docid": "83654", "title": "", "text": "domain power, and — if FERC does have such authority — whether the provisions of Order No.2003 that address eminent domain are constitutional. Courts may not presume that Congress has intended to regulate the “substantial sovereign powers” of states unless the federal statute in question is unmistakably clear. The Supreme Court has held that “if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)) (internal quotation marks omitted). “This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.” Gregory, 501 U.S. at 461, 111 S.Ct. 2395. Courts have applied this clear statement rule in a variety of cases involving federal regulation of the “substantial sovereign powers” of the states. See, e.g., Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 543-44, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002) (whether the federal supplemental jurisdiction statute tolls the statutes of limitation for state law claims in state court); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73-74, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (whether a federal statute abrogates state sovereign immunity); Gregory, 501 U.S. at 461-67, 111 S.Ct. 2395 (whether the federal Age Discrimination in Employment Act applies to state judges); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (whether states are “persons” that may be sued under 42 U.S.C. § 1983); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) (whether a federal statute preempts state law); Am. Bar Ass’n v. FTC, 430 F.3d 457, 471-72 (D.C.Cir.2005) (whether a federal statute should be interpreted to regulate the practice of law, which has long been regulated at the state" }, { "docid": "3977576", "title": "", "text": "harm upon others. The possibility that a particular individual might possess his gun solely within one state and for official purposes is irrelevant. So long as that gun has moved across state lines at least once, it is subject to the exercise of congressional Commerce Clause authority. 3. If, as we have concluded, section 922(g)(9) reflects a valid exercise of the federal power to regulate interstate commerce, then it follows that Congress has not violated the Tenth Amendment by intruding upon an area of authority reserved to the States. See New York v. United States, supra, 505 U.S. at 156, 112 S.Ct. at 2417 (“[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States”); Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991) (“[a]s long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States”); Wilson, 159 F.3d at 287. Gillespie suggests that the statute nonetheless poses a Tenth Amendment problem by, for the first time, making it a federal offense for someone convicted of a misdemeanor to possess a firearm, and also by reaching the possession of firearms possessed in the public interest by state officials. Neither argument requires lengthy attention. Constitutionally speaking, there is nothing remarkable about the extension of federal firearms disabilities to persons convicted of misdemeanors, as opposed to felonies. The particular act criminalized by each subsection of 922(g) is the possession of a firearm (or ammunition) in or affecting commerce, an activity firmly within the scope of the commerce power. See Lopez, 514 U.S. at 561-62, 115 S.Ct. at 1631, distinguishing Bass, supra, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488. Congress long ago imposed this ban on felons, and because the ban applied only to guns possessed in or affecting commerce, the Supreme Court did not view the proscription as an unconstitutional intrusion upon state sovereignty. See id. The recent inclusion of some misdemeanants raises no new concerns. True, most misdemeanors are creatures of" }, { "docid": "19968650", "title": "", "text": "chusing Senators.” (emphasis added)). Missouri contends, although Congress has authority to disrupt the federal/state balance of authority over elections, in order to do so, Congress \"must make its intention to do so unmistakably clear in the language of the statute.” (quoting Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)). The United States distinguishes Gregory, arguing the issue before the Court in Gregory, unlike the case before us, \"involved the authority of states ‘to determine the qualifications of their most important government officials.' ” (quoting Gregory, 501 U.S. at 463, 111 S.Ct. 2395). The question in Gregory was whether the Missouri constitutional requirement that state judges retire at seventy violated the Age Discrimination in Employment Act. Id. at 455, 111 S.Ct. 2395. The United States further points out \"the regulation of federal elections is not one of the inherent powers that the Tenth Amendment reserves to the states.” (citing U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802-05, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995)). We recognize the direct federal regulation of state officials' election qualifications raises far greater federalism concerns than congres-sionally imposed requirements for federal elections. We also recognize regulation of federal elections could not have been technically reserved to the states by the Tenth Amendment, when such federal elections did not exist before the Constitution was established. The Supreme Court has described the federal Elections Clause as a \"delegation[ ] of power to the States to act with respect to federal elections.” Id. at 805, 115 S.Ct. 1842. The Court was discussing the power of the states to add qualifications for federal representatives, and explained, “In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a [state] power does not exist.” Id. (emphasis added). Thus, although the regulation of federal elections is not one of the inherent powers that the Tenth Amendment reserves to the states, see id. at 802, 115 S.Ct. 1842 (explaining that the Constitution only \" 'reserve[s powers of the states] which existed before” the Constitution" }, { "docid": "19783588", "title": "", "text": "intent “to alter the usual constitutional balance between the States and the Federal Government” must be “unmistakably clear in the language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (internal quotations omitted). This requirement safeguards the sovereignty retained by the states in our federal system because it requires Congress to state clearly when and to what it extent “it intends to pre-empt the historic powers of the States.” Gregory, 501 U.S. at 461, 111 S.Ct. 2395 (citations omitted). The rule has been employed in a wide range of cases in which federal courts are asked to define the reach of Congressional enactments that threaten to upset the delicate balance of federalism. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (whether ADA applies to state prisons); BFP v. Resolution Trust Corp., 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (whether Bankruptcy Code displaced state laws relating to title in real estate); Gregory, 501 U.S. at 456, 461, 111 S.Ct. 2395 (whether ADEA ap plies to state law establishing mandatory retirement age for Missouri judges); Hayden v. Pataki, 449 F.3d 305, 323-24 (2d Cir.2006) (en banc) (whether Voting Rights Act applies to state prisoner disenfranchisement laws). “Providing public schools ranks at the very apex of the function of a State,” Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). The Supreme Court has acknowledged that “[pjublic education, like the police function, ‘fulfills a most fundamental obligation of government to its constituency,’ ” Ambach v. Norwich, 441 U.S. 68, 76, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979) (quoting Foley v. Connelie, 435 U.S. 291, 297, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978)), and that “public school teachers may be regarded as performing a task ‘that go[es] to the heart of representative government,’ ” Ambach, 441 U.S. at 75-76, 99 S.Ct. 1589 (quoting Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973)). Thus, there is little doubt that New York acts" }, { "docid": "7854846", "title": "", "text": "Railways Commission, 502 U.S. 197, 205, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991) (refusing to adopt a “per se rule prohibiting the interpretation of general liability language to include the States, absent a clear statement by Congress to the effect that Congress intends to subject the States to the cause of action”). Rather, the Court has applied the plain statement rule only when the effect of the statute would be to intrude on the States’ traditional authority and “upset the usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The rule has thus been applied to such questions as whether, in enacting a criminal statute, Congress meant to “render[ ] traditionally local criminal conduct a matter for federal enforcement and ... dramatically intrude[ ] upon traditional state criminal jurisdiction,” United States v. Bass, 404 U.S. at 350, 92 S.Ct. 515; or whether, in passing the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010, Congress intended to impose an affirmative obligation on the States to provide certain kinds of treatment to the disabled, see, e.g., Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 16-17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); or whether, in passing the Age Discrimination in Employment Act, Congress meant to override the States’ traditional authority to “determine the qualifications of their most important government officials,” Gregory v. Ashcroft, 501 U.S. at 463, 111 S.Ct. 2395. The plain statement rule has not been applied to legislation that does not interfere with traditional state authority, such as an Internal Revenue Code provision allowing the Commissioner of Internal Revenue to require a state official to honor a levy on the salary of a state employee who is delinquent in payment of his federal taxes, see Sims v. United States, 359 U.S. 108, 112-13, 79 S.Ct. 641, 3 L.Ed.2d 667 (1959). See also Reich v. New York, 3 F.3d 581, 589-90 (2d Cir.1993) (requirement that state pay overtime to state law enforcement officials under the Fair Labor Standards Act did not so" }, { "docid": "22533054", "title": "", "text": "certain of Congress' intent before finding that federal law overrides' \" the \"usual constitutional balance of federal and state powers.\" Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting Atascadero, supra, at 243, 105 S.Ct. 3142). To quote Frankfurter again, if the Federal Government would \" 'radically readjust[ ] the balance of state and national authority, those charged with the duty of legislating [must be] reasonably explicit' \" about it. BFP v. Resolution Trust Corporation, 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (quoting Some Reflections, supra, at 539-540; second alteration in original). Or as explained by Justice Marshall, when legislation \"affect[s] the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.\" Bass, supra, at 349, 92 S.Ct. 515. We have applied this background principle when construing federal statutes that touched on several areas of traditional state responsibility. See Gregory, supra, at 460, 111 S.Ct. 2395 (qualifications for state officers); BFP, supra, at 544, 114 S.Ct. 1757 (titles to real estate); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 174, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (land and water use). Perhaps the clearest example of traditional state authority is the punishment of local criminal activity. United States v. Morrison, 529 U.S. 598, 618, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Thus, \"we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.\" Bass, 404 U.S., at 349, 92 S.Ct. 515. In Bass, we interpreted a statute that prohibited any convicted felon from \" 'receiv[ing], possess[ing], or transport[ing] in commerce or affecting commerce ... any firearm.' \" Id., at 337, 92 S.Ct. 515. The Government argued that the statute barred felons from possessing all firearms and that it was not necessary to demonstrate a connection to interstate commerce. We rejected that reading, which would \"render[ ] traditionally local criminal" }, { "docid": "12218363", "title": "", "text": "for applying the clear statement rule — “all involved instances in which there had been no express waiver or abrogation of the state’s traditional immunity from suit.” Id. In contrast, the court opined, the ADA and the Rehabilitation Act each contain an express abrogation of the Eleventh Amendment ’ immunity of the States. See id. at 172-73 (citing 42 U.S.C.A. § 2000d-7(a)(l) (West 1994) (Rehabilitation Act); 42 U.S.C.A. § 12202 (West 1995) (ADA)). The court implicitly recognized that the clear statement rule has been applied by the Supreme Court in cases where there was an express abrogation, by Congress of the States’ Eleventh Amendment immunity, see, e.g., Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (holding that Missouri’s mandatory retirement requirement for state judges does not violate the Age Discrimination in Employment Act (ADEA)), and explicitly conceded that whenever “ ‘Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute,’” Yeskey, 118 F.3d at 173 (quoting Gregory, 501 U.S. at 460, 111 S.Ct. at 2400-01), and that “prison administration [is] a ‘core’ state function,” id. Notwithstanding these concessions, the court determined that the clear statement rule was inapplicable because, it concluded, Congress made clear in the language of the statutes that the ADA and the Rehabilitation Act apply to state prisons. See id. The court acknowledged the looming “specter of federal court management of state prisons,” resulting from application of the ADA and the Rehabilitation Act. Id. at 174; see also id. (“ ‘[I]f the ADA applies to routine prison decisions, it is not unfathomable that courts will be used to reconstruct cells and prison space, to alter scheduling of inmate movements and assignments, and to interfere with security procedures.’” (quoting Appellees’ Br. at 15)). The court held, however, that such concerns “do not override our conclusion that the ADA applies to prisons.” Id. The court concluded: “[O]ur holding does not dispose of the controversial and difficult question [of] whether principles of deference to" } ]

[ { "docid": "828182", "title": "", "text": "effect exception of the FSIA, since by definition this exception applies only to commercial activity outside of the United States; commercial activity occurring in whole or in part within the United States is covered by the first two categories of exceptions. Thus, as a matter of statutory interpretation, this contention must be rejected. Nor does due process require its acceptance. The Supreme Court enunciated the constitutional limits on the exercise of personal jurisdiction over foreign corporations in Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984), stating: Even when the cause of action does not arise out of or relate to the foreign corporation’s activities in the forum state, due process is not offended by a State’s subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 [72 S.Ct. 413, 96 L.Ed. 485] (1952).... Congress intended to subject foreign states engaging in commercial activities within the scope of § 1605(a)(2) to liability to the same extent as private persons. See 28 U.S.C. § 1606; Verlinden, 461 U.S. at 488-89, 103 S.Ct. at 1968-69. Thus, the Court’s reasoning applies with equal force here to deny any constitutional bar to the exercise of general jurisdiction over a foreign de fendant. See also Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1315-16 (9th Cir.1985), implicitly adopting the same view. Olsen by Sheldon v. Gov’t of Mexico, 729 F.2d 641 (9th Cir.1984), provides no support for defendants’ position. In that action for wrongful death based on state law, the court found sufficient contacts from the transaction at issue to establish specific jurisdiction and therefore found it unnecessary to determine whether general jurisdiction existed. It specifically stated, however, that jurisdiction over a non-resident defendant may be founded on substantial, continuous and systematic contacts with the forum unrelated to the cause of action. Id. at 648. Vencedora, supra, is not in point because that court did not address the personal jurisdiction issue, but held only that where the" } ]

[ { "docid": "23270477", "title": "", "text": "jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.” 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). We think it apparent that WEDGE’s contacts with Tennessee are not of a “continuous and systematic” nature such that Tennessee could maintain personal jurisdiction over WEDGE in an action unrelated to its Tennessee contacts. Thus, personal jurisdiction in this case, it it exists, must be specific jurisdiction. In Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir.1968), a case of specific jurisdiction, this court set forth a three-part test for deter mining whether, consistent with due process, personal jurisdiction may be exercised: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. 401 F.2d at 381. Analyzing the present case under the three Southern Machine criteria, we conclude that specific jurisdiction exists over WEDGE in Tennessee. A. The first Southern Machine criterion requires that the defendant must have “purposefully avail[ed] [itjself of the privilege of acting in the forum state or causing a consequence in the forum state.” The “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction as a result of “random,” “fortuitous,” or “attenuated” contacts, Keeton v. Hustler Magazine, Inc., 465 U.S. [770] at 774, 79 L.Ed.2d 790, 104 S.Ct. 1473 [at 1478 (1984)] World-Wide Volkswagen Corp. v. Woodson, supra, [444 U.S. 286] at 299, 62 L.Ed.2d 490, 100 S.Ct. 559 [at 568], or of the “unilateral activity of another party or a third person,” Helicopteros Nacionales de Colombia, S.A. v. Hall, supra, [466 U.S. 408] at 417, 80 L.Ed.2d 404, 104 S.Ct. 1868 [at 1873]. Jurisdiction is proper, however," }, { "docid": "288228", "title": "", "text": "(1985). Where, as in this case, the trial court ruled on the issue relying on affidavits and discovery materials without holding an evidentiary hearing, dismissal is appropriate only if the plaintiff has not made a prima facie showing of personal jurisdiction. Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1241 (9th Cir.1984); Data Disc, Inc. v. Systems Technology Associates, 557 F.2d 1280, 1284-85 (9th Cir.1977). Our review is de novo. See Congoleum, 729 F.2d at 1241. For the purposes of the appeal, we treat the plaintiff’s allegations as correct. See Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2a 1325, 1327 (9th Cir.1985). III. General Jurisdiction “In a case based on diversity jurisdiction, a federal court applies the personal jurisdiction rules of the forum state provided the exercise of jurisdiction comports with due process.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). Because California imposes no greater restrictions than does the United States Constitution, see id.; Cal. Civ.Pro.Code § 410.10 (West 1973), “federal courts in California may exercise jurisdiction to the fullest extent permitted by due process.” Scott, 792 F.2d at 927; see Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986). There are two types of personal jurisdiction: general and specific. General personal jurisdiction, which enables a court to hear cases unrelated to the defendant’s forum activities, exists if the defendant has “substantial” or “continuous and systematic” contacts with the forum state. Haisten, 784 at 1396; Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). This is a fairly high standard in practice. Texas did not have general jurisdiction over a foreign corporation which sent one of its officers to negotiate a contract, sent personnel to train there, accepted checks drawn on a Texas bank, and purchased equipment from a Texas firm. Helicopteros, 466 U.S. at 416, 104 S.Ct. at 1837. Doctors in an Arizona border town did not have sufficient" }, { "docid": "327361", "title": "", "text": "be inconsistent with federal due process. Haisten, 784 F.2d at 1396. Cal.Civ.Pro.Code § 410.10 (West 1973), provides that the court “may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” This statute confers jurisdiction that is coextensive with federal due process. See Scott, 792 F.2d at 927; Hais-ten, 784 F.2d at 1396. In order for personal jurisdiction to lie, a defendant must have “meaningful ‘contacts, ties, or relations’ ” with the forum. See Burger King Corporation v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2181-82, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945)); Haisten, 784 F.2d at 1396. These ties may be formed in one of two ways. If the non-resident defendant’s activities in the state are “continuous and systematic,” or “substantial,” the court may assert general jurisdiction over a cause of action, even if it is unrelated to the defendant’s forum activities. Scott, 792 F.2d at 927; see Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n. 9, 104 S.Ct. 1868, 1872 & n. 9, 80 L.Ed.2d 404 (1984). If the defendant’s contacts are neither substantial, nor continuous and systematic, but the cause of action arises out of or is related to the defendant’s forum activities, “limited” or “specific” personal jurisdiction exists. Scott, 792 F.2d at 927. This court traditionally has applied a three-part test to determine if limited jurisdiction exists: (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. Haisten, 784 F.2d at 1397. In Haisten, we noted certain Supreme Court refinements to the purposeful availment and reasonableness prongs of the limited jurisdiction test that we consider in our analysis. Id. A. General" }, { "docid": "23101449", "title": "", "text": "v. Merchent, 744 F.2d 665, 667 (9th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985). Because this case proceeded to trial, the plaintiff is put to the full burden of proof and must establish the jurisdictional facts by a preponderance of the evidence. Forsythe v. Overmyer, 576 F.2d 779, 781 (9th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978); see also Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1286, n. 2 (9th Cir.1977). In a diversity case, the court must first inquire whether the assertion of jurisdiction satisfies California state law as well as due process requirements. Corporate Investment Business Brokers v. Melcher, 824 F.2d 786, 787 (9th Cir.1987); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). Since California law confers jurisdiction coextensive with due process, this court need only analyze whether the exercise of jurisdiction comports with due process. FDIC v. British-American Ins. Co. Ltd., 828 F.2d 1439, 1441 (9th Cir.1987); Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986); see Cal.Code Civ.Proc. § 410.10 (West 1973). The due process clause of the Fourteenth Amendment requires that the defendant must have minimum contacts with the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Data Disc, 557 F.2d at 1287. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Sinatra does not contend, and it is clear, that the Clinic did not have “substantial” or “continuous and systematic” contacts with California to support the exercise of general jurisdiction. See Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1477 (9th Cir.1986). See also, Heliocopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 & n. 9, 104 S.Ct. 1868, 1872 & n. 9, 80 L.Ed.2d 404 (1984). Therefore, the issue before this court is whether the district court properly-asserted “limited” or “specific” jurisdiction for a cause of action arising out of the Clinic’s forum-related activities." }, { "docid": "20716073", "title": "", "text": "for the purpose of establishing personal jurisdiction, due process requires “certain minimum contacts with [the United States] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice” (internal quotation marks omitted)); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (“[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum.... Rather, it is that the defendant’s conduct and connection with the forum ... are such that he should reasonably anticipate being haled into court there.”). To determine whether a defendant has the necessary “minimum contacts,” a distinction is made between “specific” and “general” personal jurisdiction. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567-68 (2d Cir.1996). “Specific [personal] 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 ... and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts.” Id. (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 & nn. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). The existence of either specific personal jurisdiction or general personal jurisdiction satisfies the “minimum” contacts requirement of the Due Process Clause. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414-16, 104 S.Ct. 1868. For the purpose of establishing specific personal jurisdiction, the necessary “ ‘fair warning’ requirement is satisfied if 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, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), and Helicopteros Nacionales de Colombia," }, { "docid": "20638294", "title": "", "text": "F.3d 333, 335 (5th Cir.1999). Mississippi’s long-arm statute confers personal jurisdiction over “[a]ny nonresident person ... who shall commit a tort in whole or in part in this state against a resident or nonresident of this state .... ” Miss.Code ANN. § 13-3-57 (2002). Under Mississippi law, a tort is not complete until an injury is suffered. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1168 (5th Cir.1985) (quoting Smith v. Temco, Inc., 252 So.2d 212, 216 (Miss.1971)). If the injury occurs in Mississippi, the tort is committed, at least in part, in the state, and the requirements of the long-arm statute are satisfied. Id. The tortfeasor’s presence in Mississippi is not required; causing an injury that occurs in the state is sufficient. Id. (quoting Brown v. Flowers Indus., Inc., 688 F.2d 328, 333 (5th Cir.1982)). The Due Process Clause “operates to limit the power of a State to assert in personam jurisdiction over a nonresident defendant.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The “constitutional touchstone” of the inquiry to determine if personal jurisdiction can be exercised is whether the defendant “purposefully established minimum contacts in the forum State.” Asahi Metal Ind. Co. v.Super. Ct., 480 U.S. 102, 108-09, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Personal jurisdiction can be general or specific. If a defendant’s contacts with the forum state are “continuous and systematic,” a court may exercise general jurisdiction over any action brought against that defendant, regardless of whether the action is related to the forum contacts. Helicopteros, 466 U.S. at 414-15, 104 S.Ct. 1868. If a defendant has relatively few contacts, a court may still exercise specific jurisdiction “in a suit arising out of or related to the defendant’s contacts with the forum.” Id. at 414 & n. 8, 104 S.Ct. 1868. It is not disputed that HAI and Camus lack sufficient contacts to justify general jurisdiction; only specific jurisdiction is at issue. We articulated a three-step analysis" }, { "docid": "18200015", "title": "", "text": "of that foreign state while acting within the scope of his office or employment. 28 U.S.C. § 1605(a)(5). But plaintiffs allege no tort that occurred on American soil. To be sure, plaintiff Jane Doe II alleges that she suffered emotional distress when she learned, from a television report that she watched in the United States, that her family members were killed in the West Bank. However, both the tort and the injury must occur on United States territory. See Persinger v. Islamic Republic of Iran, 729 F.2d 835, 836-37 (D.C.Cir.1984). Plaintiffs have failed to suggest that the Israeli defendants committed any tort on United States soil, and hence the “tortious acts” exception under § 1605(a)(5) does not apply. C. Personal Jurisdiction Over Individual Israeli Defendants Plaintiffs have also failed to allege sufficient facts to establish personal jurisdiction over the individual Israeli defendants. Personal jurisdiction requires that the individual Israeli defendants have sufficient minimum contacts with the District of Columbia, see Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), which may exist in two forms: (1) general contacts that are “continuous and systematic,” such that the forum has jurisdiction over any matter involving the defendant, see Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); and (2) specific contacts that give rise to the actual claims against the defendant, see D.C. Code Ann. § 13^423(b). The complaint does not allege facts sufficient to support a finding of general jurisdiction over any of the Israeli defendants. To the contrary, the complaint establishes that the individual Israeli defendants live abroad, acted abroad, and are employed abroad. Thus, if personal jurisdiction exists here at all, it must exist based on specific contacts. The District of Columbia “long-arm statute” is the starting point for a specific contacts analysis, and authorizes jurisdiction if the defendant: (1) has “transacted any business” in the district, or (2) has caused tortious injury in the district by “an act or omission outside the district if the defendant regularly does or solicits business, engages" }, { "docid": "8295252", "title": "", "text": "first type of jurisdiction, known as specific jurisdiction, requires that the plaintiffs claim arise from the defendant’s contacts with the forum in which the court sits. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Telcordia Tech Inc. v. Telkom S.A., 458 F.3d 172, 177 (3d Cir.2006). In contrast, the court may exercise general jurisdiction over a defendant who possesses systematic and continuous contacts with the forum regardless of whether the plaintiffs claim derives from the defendant’s in-forum activities. Helicopteros, 466 U.S. at 415 n. 9, 104 S.Ct. 1868; Marten v. Godwin, 499 F.3d 290, 296 (3d Cir.2007). The court must determine whether to exercise either form of jurisdiction in light of the “relationship among the defendant, the forum, and the litigation.” Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)). When a statute such as the Sherman Act permits nationwide service of process, the Fifth Amendment Due Process Clause guides the court’s personal jurisdiction inquiry. Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 295 (3d Cir.1985); Holland v. King Knob Coal Co., 87 F.Supp.2d 433, 436 (W.D.Pa.2000). 1. Specific Jurisdiction Specific jurisdiction allows the court to adjudicate claims related to defendants’ contacts with the forum. Three alternative theories allow a court to acquire specific jurisdiction over a defendant. First, under principles of purposeful availment, the court may exercise jurisdiction over a defendant that has directed its activities into a forum, thereby producing the alleged injury. Second, the stream-of-commerce theory provides jurisdiction over an out-of-forum defendant if plaintiffs in-forum injury arises from a product that defendant placed into channels of commerce. Third, the effects test announced in Colder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), confers jurisdiction over a defendant whose tortious conduct performed outside the forum produced effects within the forum. Plaintiffs argue that each theory supplies jurisdiction over the Rule 12(b)(2) defendants. a. Purposeful Availment Under purposeful availment doctrine, a court may exercise specific jurisdiction if" }, { "docid": "15885408", "title": "", "text": "v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). The Due Process Clause of the Fourteenth Amendment protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful “contacts, ties, or relations.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Exercising personal jurisdiction over a nonresident defendant is consistent with constitutional due process when “(1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend ‘traditional notions of fair play and substantial justice.’” Mink v. AAAA Development LLC, 190 F.3d 333, 336 (5th Cir.1999) (quoting International Shoe Co., 326 U.S. at 316, 66 S.Ct. 154 (1945)). “ ‘Minimum contacts’ can be established either through contacts sufficient to assert specific jurisdiction, or contacts sufficient to assert general jurisdiction.” Id.; Alpine View, 205 F.3d at 215. When a nonresident defendant has “purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities,” the defendant’s contacts are sufficient to support the exercise of specific jurisdiction over that defendant. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal quotation marks omitted). General jurisdiction may be asserted when a defendant’s contacts with the forum state are substantial and “continuous and systematic” but unrelated to the instant cause of action. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). A. Contacts Sufficient To Establish General Jurisdiction APA does not appear to have the kind of substantial, continuous, and systematic contacts with the State of Texas sufficient to support an exercise of general jurisdiction in this case. See Alpine Vieiv 205 F.3d at 217-18. See also Helicopteros Nacionales de Colombia, 466 U.S. at 414, 104 S.Ct. 1868; Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96" }, { "docid": "10229556", "title": "", "text": "“traditional notions of fair play and substantial justice.” Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1485 (9th Cir.1993) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). There are two types of personal jurisdiction that a court may exercise over a nonresident defendant. A court may exercise “general jurisdiction” over a nonresident defendant, even if “the cause of action does not arise out of or relate to the [nonresident defendant’s] activities in the forum State,” when the nonresident defendant’s activities within the state are “substantial” or “continuous and systematic.” Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 414-15, 415 n. 9, 104 S.Ct. 1868, 1872 n. 9, 80 L.Ed.2d 404 (1984); see also Pacific Atlantic Trading, 758 F.2d at 1327; Data Disc, 557 F.2d at 1287. It is evident in this case that Fox Five does not conduct substantial or continuous and systematic activities in the State of Nevada. Plaintiffs’ complaint does not allege facts showing that the defendant’s activities in the forum state even approach those of the defendant in Helicópteros, supra, which were held to be insufficient to confer general jurisdiction. Therefore, this court must determine whether the defendant has “minimum contacts” with the forum of Nevada sufficient to subject it to “specific jurisdiction.” Core-Vent, 11 F.3d at 1485. Specific jurisdiction, which is sometimes referred to as limited jurisdiction, may lie even when a nonresident defendant’s activities are not so pervasive as to subject him to general jurisdiction. Data Disc, 557 F.2d at 1287. However, “the issue of whether [specific] jurisdiction will lie turns on an evaluation of the nature and quality of the defendant’s contacts in relation to the cause of action.” Id. (emphasis added). The Ninth Circuit analyzes whether a nonresident defendant has sufficient “minimum contacts” with the forum state by applying the following three-prong test: (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" }, { "docid": "118659", "title": "", "text": "Jurisdiction “In a case based on diversity jurisdiction, a federal court applies the personal jurisdiction rules of the forum state provided the exercise of jurisdiction comports with due process.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). Because California imposes no greater restrictions than does the United States Constitution, see id.; Cal.Civ.Pro.Code § 410.10 (West 1973), “federal courts in California may exercise jurisdiction to the fullest extent permitted by due process.” Scott, 792 F.2d at 927; see Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986). There are two types of personal jurisdiction, specific and general. See Haisten, 784 F.2d at 1396. General personal jurisdiction, which enables a court to hear cases unrelated to the defendant’s forum activities, exists if the defendant has “substantial” or “continuous and systematic” contacts with the forum state. Id.; Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1682, 90 L.Ed.2d 187 (1986); see Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). Our cases demonstrate that “substantial” is intended to be a fairly high standard. See, e.g., Helicopteros, 466 U.S. at 416, 104 S.Ct. at 1873 (no jurisdiction over foreign corporation that sent officer to forum for one negotiating session, accepted checks drawn on a forum bank, purchased equipment from the forum, and sent personnel to the forum to be trained); Cubbage v. Merchent, 744 F.2d 665, 667-68 (9th Cir.1984), (no jurisdiction over doctors despite significant numbers of patients in forum, use of forum’s state medical insurance system and telephone directory listing that reached forum), cert. denied, — U.S. —, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1330-31 (9th Cir.1984) (no jurisdiction over defendants despite several visits and purchases in forum, solicitation of contract in forum which included choice of law provision favoring forum, and extensive communication with forum), cert. denied, — U.S. —, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985); Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1243 (9th Cir.1984) (developing sales" }, { "docid": "23101450", "title": "", "text": "784 F.2d 1392, 1396 (9th Cir.1986); see Cal.Code Civ.Proc. § 410.10 (West 1973). The due process clause of the Fourteenth Amendment requires that the defendant must have minimum contacts with the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Data Disc, 557 F.2d at 1287. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Sinatra does not contend, and it is clear, that the Clinic did not have “substantial” or “continuous and systematic” contacts with California to support the exercise of general jurisdiction. See Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1477 (9th Cir.1986). See also, Heliocopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 & n. 9, 104 S.Ct. 1868, 1872 & n. 9, 80 L.Ed.2d 404 (1984). Therefore, the issue before this court is whether the district court properly-asserted “limited” or “specific” jurisdiction for a cause of action arising out of the Clinic’s forum-related activities. FDIC, 828 F.2d at 1442; Hirsch, 800 F.2d at 1477. This circuit applies a three-part test to evaluate whether a court may exercise specific jurisdiction: 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. Decker, 805 F.2d at 839. Under the three-part test, the plaintiff must show that the Clinic’s contacts with California have a basis in “ ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Asahi, 107 S.Ct. at 1031 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)). To satisfy the minimum contacts requirement, the" }, { "docid": "14036818", "title": "", "text": "Plaintiffs patent is not the proper inquiry on a Motion to Dismiss for lack of personal jurisdiction. Plaintiff has alleged patent infringement and this Court will construe the facts in light most favorable to Plaintiff and hold that the alleged patent infringement satisfies Florida’s statute on long-arm jurisdiction. B. Due Process Due process requires that the defendant have certain minimum contacts with the forum, such that the maintenance of the suit does hot offend “traditional notions of fair play and substantial justice.” Structural Panels, 814 F.Supp. at 1066.(citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). 1. Minimum Contacts Regardless of Plaintiff meeting the first part of the Court’s inquiry into the existence of personal jurisdiction, the Court finds that there are insufficient “minimum contacts” between Defendant and Florida to ensure due process. Minimum contacts within the forum may give rise to two types of personal jurisdiction: specific or general jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). To assert general jurisdiction over Defendant, there must, be substantial or “continuous and systematic” contacts with the forum to comport with due process. Williams Elec. Co. v. Honeywell, Inc., 854 F.2d 389, 392 n. 2 (11th Cir.1988). Even when the cause of action does not arise out of the nonresident’s activities with the forum state, due process is not offended if the court asserts personal jurisdiction over the defendant where there are sufficient contacts between the nonresident defendant and the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Specific jurisdiction is exercised when the suit arises out of, or is related to, a party’s single or isolated contact with the forum. Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868. The court may exercise specific jurisdiction over a nonresident if the defendant has purposefully directed his activities to the forum state, and the alleged injury to the forum residents arises out of those activities. Structural Panels, 814 F.Supp. at 1066 (citing Burger King" }, { "docid": "118658", "title": "", "text": "between Brand and the customer resulted in a jury verdict against Brand. Brand brought suit in federal district court in Los Angeles against Menlove, Patterson, and the Los Angeles Auto Auction. Menlove moved to quash summons and process. When Menlove did not appear at the hearing on the motion, the motion was denied pursuant to Central District Local Rule 7.10 (requiring attendance of counsel at hearings unless excused). Menlove made no further appearances before the court, which entered a default judgment against it on the fraud and negligence counts and awarded compensatory and punitive damages. Menlove timely appeals. DISCUSSION I. Standard of Review When a district judge has made no findings on disputed facts, we review the materials presented de novo to determine if the plaintiff has made out a prima facie case of personal jurisdiction over the defendant. See Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1326-27 (9th Cir.1985). For the purposes of the appeal, we resolve all factual disputes in favor of Brand. See id. at 1327. II. General Jurisdiction “In a case based on diversity jurisdiction, a federal court applies the personal jurisdiction rules of the forum state provided the exercise of jurisdiction comports with due process.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). Because California imposes no greater restrictions than does the United States Constitution, see id.; Cal.Civ.Pro.Code § 410.10 (West 1973), “federal courts in California may exercise jurisdiction to the fullest extent permitted by due process.” Scott, 792 F.2d at 927; see Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986). There are two types of personal jurisdiction, specific and general. See Haisten, 784 F.2d at 1396. General personal jurisdiction, which enables a court to hear cases unrelated to the defendant’s forum activities, exists if the defendant has “substantial” or “continuous and systematic” contacts with the forum state. Id.; Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1682, 90 L.Ed.2d 187 (1986); see Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868," }, { "docid": "4410654", "title": "", "text": "the cause of action was related to its activities in Washington. Heli-copteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984); Data Disc, Inc., 557 F.2d at 1287. Its lack of a regular place of business in Washington is significant, and is not overcome by a few visits. Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1331 (9th Cir.1984). Langsten had no regular contact of any kind with the State of Washington, and had quite limited contact even with regard to the Acona. C. Specific Jurisdiction Even without general jurisdiction over the defendant, the court in Washington would have jurisdiction specific to the case at bar, if the controversy were sufficiently related to or arose out of Langsten’s contacts with the forum state. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414, 104 S.Ct. at 1872. In our circuit, we employ a three-part test to determine whether specific jurisdiction may be applied to a particular 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) [t]he claim must be one which arises out of or results from the defendant’s forum-related activities[; and] (3) [e]xercise of jurisdiction must be reasonable. Data Disc, Inc., 557 F.2d at 1287; Roth v. Garcia Marquez, 942 F.2d 617, 620-21 (9th Cir.1991). These three criteria are our circuit’s approach to analyzing the single question of whether the “constitutional touchstone” of “minimum contacts” necessary for due process are satisfied. Burger King Corp., 471 U.S. at 474, 105 S.Ct. at 2183. If any of the three requirements is not satisfied, jurisdiction in the forum would deprive the defendant of due process of law. We do not discuss application of the “reasonableness” criterion, because the seven factor test we use, Roth, 942 F.2d at 623-24, by reason of its large number of factors to be balanced, is less certain in its application than the tests" }, { "docid": "14048654", "title": "", "text": "“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, 104 S.Ct. at 1873). The Treuhand argues that, although from 1991 through 1993 it maintained offices in New York City and Chicago, at the time the lawsuit was filed, in February 1995, since it conducted no business activities and no longer maintained offices in the United States, its contacts are not sufficiently “continuous and systematic” for the purposes of establishing jurisdiction. While those contacts might arguably be insufficient to establish general jurisdiction, a less stringent minimum contacts test will apply where, as here, plaintiffs’ claim arises out of defendants’ contacts with the United States. See Metropolitan Life, 84 F.3d at 567-68. Plaintiffs’ tortious interference claim is based, inter alia, on the transfer of ownership of newly privatized machine tool factories by the Treuhand to American competitors of WMW without advising those competitors of the Commercial Agency Contract, and the exclusive distribution agreement therein. Thus, while the Treu-hand was not a party to the contract, that claim “arises out of’ and is certainly “related to” the Treuhand’s actions within the United States. See Metropolitan Life Ins.," }, { "docid": "288229", "title": "", "text": "permitted by due process.” Scott, 792 F.2d at 927; see Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986). There are two types of personal jurisdiction: general and specific. General personal jurisdiction, which enables a court to hear cases unrelated to the defendant’s forum activities, exists if the defendant has “substantial” or “continuous and systematic” contacts with the forum state. Haisten, 784 at 1396; Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). This is a fairly high standard in practice. Texas did not have general jurisdiction over a foreign corporation which sent one of its officers to negotiate a contract, sent personnel to train there, accepted checks drawn on a Texas bank, and purchased equipment from a Texas firm. Helicopteros, 466 U.S. at 416, 104 S.Ct. at 1837. Doctors in an Arizona border town did not have sufficient contacts with California despite a significant number of California residents as patients, use of the state health insurance system, and listings in the telephone directory that served people on both sides of the border. Cubbage, 744 F.2d at 667-68. No general jurisdiction existed in Arizona over defendants who visited Arizona several times, purchased materials in the state, solicited an agreement in the state that included Arizona choice of law and forum provisions and did a great deal of communicating by phone, telex, and letter to Arizona. Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1330-31 (9th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985). A significant fact in Gates was that defendants had no place of business in Arizona. Id. at 1331. The existence of a developing sales outlet in a state was held insufficient to create general personal jurisdiction in Congoleum, 729 F.2d at 1243. Fields claims that California has general jurisdiction over both defendants. He relies primarily on activities of Sedgwick Group and Lloyd’s of London. How ever," }, { "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": "22159303", "title": "", "text": "Grass Valley Medical Reimbursement Fund, 784 F.2d 1392, 1396 (9th Cir 1986). Discussion There are two limitations on a court’s power to exercise personal jurisdiction over a nonresident defendant: the applicable state personal jurisdiction rule 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 rule reads: “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal Civ.Proc.Code § 410.10 (1989). This statutory limitation is “coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United States Supreme Court.” Data Disc, 557 F.2d at 1286 (internal quotations omitted). Jurisdiction in this case is thus constrained only by constitutional principles. Due process precludes a court from asserting jurisdiction over a defendant unless the defendant has certain minimum contacts with the forum state. The overriding constitutional principle is that maintenance of an action in the forum must not offend “traditional conceptions] of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945). The defendant’s “conduct and connection with the forum State” must be such that the defendant “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). A court may exercise either general or specific jurisdiction over a nonresident defendant. Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 nn. 8-9, 104 S.Ct. 1868, 1872 nn. 8-9, 80 L.Ed.2d 404 (1984). General jurisdiction applies where a defendant’s activities in the 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 (internal quotations omitted). Where general jurisdiction is inappropriate, a court may still exercise specific jurisdiction if the defendant has sufficient contacts with the forum state in relation to the cause of action. Id. The Shers do not claim that" }, { "docid": "18746037", "title": "", "text": "on diversity jurisdiction, a federal court applies the personal jurisdiction rules of the forum state provided the exercise of jurisdiction comports with due process. Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392,1396 (9th Cir.1986). Cal.Civ.Pro. Code § 410.10 provides that “[a] court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Because the California Constitution imposes no greater restriction than does the United States Constitution, see Data Disc, 557 F.2d at 1286 n. 3, federal courts in California may exercise jurisdiction to the fullest extent permitted by due process. Id.; see also Haisten, 784 F.2d at 1396. “If the nonresident defendant’s activities within a state are ‘substantial’ or ‘continuous and systematic,’ there is a sufficient relationship between the defendant and the state to support jurisdiction even if the cause of action is unrelated to the defendant’s forum activities.” Data Disc, 557 F.2d at 1287. This is commonly referred to as “general jurisdiction.” See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n. 9, 104 S.Ct. 1868, 1872 & n. 9 (1984). If the defendant lacks sufficient ties to support general jurisdiction, a court may still exercise personal jurisdiction over the defendant if the cause of action arises out of or is related to the defendant’s forum activities. To comport with due process, such “specific jurisdiction,” see id. at 414 & n. 8, 104 S.Ct. at 1868 & n. 8, must meet the following three-part test: (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, 557 F.2d at 1287. Recent Supreme Court decisions have resulted in some slight modifications of this test not pertinent here. See Haisten, 784 F.2d at 1397." } ]

[ { "docid": "3719170", "title": "", "text": "197, 202, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988) (citations omitted). Section 1115 is a new provision, added in 2005 by the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPC-PA”). This section has given rise to a disagreement among courts as to whether the absolute priority rule still applies to individual Chapter 11 debtors. At least four bankruptcy courts have held that § 1115 should be read to have eliminated the absolute priority rule for individual Chapter 11 debtors. See In re Shat, 424 B.R. 854 (Bankr.D.Nev.2010); In re Johnson, 402 B.R. 851 (Bankr.N.D.Ind.2009); In re Roedemeier, 374 B.R. 264 (Bankr.D.Kan.2007); In re Tegeder, 369 B.R. 477 (Bankr.D.Neb.2007). These courts take a broad interpretation of §§ 1129(b)(2)(B)(ii) and 1115. Under this broad interpretation, § 1115 includes not only the post-petition property and earnings set forth in § 1115, but all of the property included in the estate under § 541 as well. Generally, those courts reason that Congress intended individual Chapter 11 cases to be more analogous to cases filed under Chapter 13. See, e.g., Shat, 424 B.R. at 865; Johnson, 402 B.R. at 852-58; Roedemeier, 374 B.R. at 276. Other courts have held that the absolute priority rule still applies in individual Chapter 11 cases, but that § 1129(b)(2)(B)(ii) limits the application of the absolute priority rule by allowing an individual to retain only the property that is added to the estate by § 1115. See In re Gbadebo, 431 B.R. 222 (Bankr.N.D.Cal.2010); In re Mullins, 435 B.R. 352 (Bankr.W.D.Va.2010); In re Gelin, 437 B.R. 435 (Bankr.M.D.Fla.2010); In re Steedley, No. 09-50654, 2010 WL 3528599 (Bankr.S.D.Ga. Aug.27, 2010); In re Karlovich, No. 10-10860-PB11, 2010 WL 5418872 (Bankr.S.D.Cal. Nov.16, 2010). These courts take a narrow view whereby § 1115 simply adds certain property to an individual debtor’s Chapter 11 estate in addition to that already included by § 541 and it is that additional property that is referenced in § 1129(b)(2)(B)(ii). The Court first addresses the split between the bankruptcy courts on the proper reading of §§ 1129(b)(2) and 1115. For the reasons stated below and for the reasons stated" } ]

[ { "docid": "20241377", "title": "", "text": "2012 WL 1820877 (Bankr.C.D.Cal. May 17, 2012); In re Tucker, 2011 WL 5926757 (Bankr.D.Or. 2011); In re Borton, 2011 WL 5439285 (Bankr.D.Idaho 2011); In re Lindsey, 453 B.R. 886 (Bankr.E.D.Tenn.2011); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Draiman, 450 B.R. 777 (Bankr.N.D.Ill.2011); In re Maharaj, 449 B.R. 484 (Bankr.E.D.Va.2011); In re Walsh, 447 B.R. 45 (Bankr.D.Mass.2011); In re Stephens, 445 B.R. 816 (Bankr.S.D.Tex.2011); In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Steedley, 2010 WL 3528599 (Bankr.S.D.Ga.2010); In re Gelin, 437 B.R. 435 (Bankr.M.D.Fla.2010); In re Mullins, 435 B.R. 352 (Bankr.W.D.Va.2010); In re Gbadebo, 431 B.R. 222 (Bankr.N.D.Cal.2010). In reaching these decisions, courts have stated differing rationales as to why the absolute priority rule remains valid in individual Chapter 11 cases. Beginning with Gbadebo, several of the above courts found that the language of § 1129(b)(2)(B)(ii) preserved the absolute priority rule in unambiguous terms. See, e.g., Tucker, 2011 WL 5926757 at *2; Draiman, 450 B.R. at 821 (relying on the “plain meaning” of § 1129(b)(2)(B)(ii)); Walsh, 447 B.R. at 48-49 (quoting Gbadebo, 431 B.R. at 229); Steedley, 2010 WL 3528599 at *2; Mullins, 435 B.R. at 360; Karlovich, 456 B.R. at 681; Borton, 2011 WL 5439285 at *4. After discussing the contrary holding of Shat, the Gbadebo court, in frequently quoted language, stated [notwithstanding the thorough and thoughtful analysis by the Shat court, the Court is unable to agree with its conclusion. If the Court were writing on a clean slate, it would view the language of § 1129(b) (2) (B) (ii) as unambiguous. The Court would read the phrase “included in the estate under section 1115” to be reasonably susceptible to only one meaning: i.e., added to the bankruptcy estate by § 1115. 431 B.R. at 229. Lindsey, Kamell, and Gelin, however, held that the language of § 1129(b)(2)(B)(ii) was ambiguous. Lindsey in particular noted that, if the statute were not ambiguous, “there would be no split of authority and the arguments in favor of each position [would not be] so diverse.” 453 B.R. at 903. And both Ge-lin and Kamell noted the lack of direct (or" }, { "docid": "20241376", "title": "", "text": "property specified in sec tion 541;” both also list, in like terms, post-petition acquired property and earnings. See 11 U.S.C. §§ 1115,1306. In addition, the Shat court noted its belief that “[t]he broader view ... saves Section 1129(b)(2)(B)(ii) from an almost trivial reading,” 424 B.R. at 868; a sentiment echoed by the court in Roedemeier when it noted “the narrow reading of the new exception in § 1129(b)(2)(B)(ii) would have little impact on ... probably most ... individual debtors’[ ] ability to reorganize in Chapter 11.” 374 B.R. at 275. See Tegeder, 369 B.R. at 480, quoting Hon. William L. Norton, Jr., 4 Norton Bankruptcy Law & Practice 2d § 84A:1 (“A more narrow interpretation [of § 1129(b) (2) (B) (ii) ] would cause this amendment to have little effect.”). On the other hand, over a dozen separate bankruptcy courts, including the court below, have adopted the “narrow view” and held that BAPCPA did not abrogate the absolute priority rule in its entirety for individual Chapter 11 debtors. See In re Arnold, — B.R. -, 2012 WL 1820877 (Bankr.C.D.Cal. May 17, 2012); In re Tucker, 2011 WL 5926757 (Bankr.D.Or. 2011); In re Borton, 2011 WL 5439285 (Bankr.D.Idaho 2011); In re Lindsey, 453 B.R. 886 (Bankr.E.D.Tenn.2011); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Draiman, 450 B.R. 777 (Bankr.N.D.Ill.2011); In re Maharaj, 449 B.R. 484 (Bankr.E.D.Va.2011); In re Walsh, 447 B.R. 45 (Bankr.D.Mass.2011); In re Stephens, 445 B.R. 816 (Bankr.S.D.Tex.2011); In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Steedley, 2010 WL 3528599 (Bankr.S.D.Ga.2010); In re Gelin, 437 B.R. 435 (Bankr.M.D.Fla.2010); In re Mullins, 435 B.R. 352 (Bankr.W.D.Va.2010); In re Gbadebo, 431 B.R. 222 (Bankr.N.D.Cal.2010). In reaching these decisions, courts have stated differing rationales as to why the absolute priority rule remains valid in individual Chapter 11 cases. Beginning with Gbadebo, several of the above courts found that the language of § 1129(b)(2)(B)(ii) preserved the absolute priority rule in unambiguous terms. See, e.g., Tucker, 2011 WL 5926757 at *2; Draiman, 450 B.R. at 821 (relying on the “plain meaning” of § 1129(b)(2)(B)(ii)); Walsh, 447 B.R. at 48-49 (quoting Gbadebo, 431" }, { "docid": "12644175", "title": "", "text": "435 B.R. 352 (Bankr.W.D.Va.2010); In re Gelin, 437 B.R. 435 (Bankr.M.D.Fla.2010); In re Gbadebo, 431 B.R. 222 (Bankr.N.D.Cal.2010); In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Walsh, 447 B.R. 45 (Bankr.D.Mass.2011); In re Stephens, 445 B.R. 816 (Bankr.S.D.Tex.2011); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Maharaj, 449 B.R. 484 (Bankr.E.D.Va.2011). A minority of courts have ruled that the absolute priority rule no longer applies in individual Chapter 11 cases. See In re Roedemeier, 374 B.R. 264 (Bankr.D.Kan.2007); In re Tegeder, 369 B.R. 477 (Bankr.D.Neb.2007); In re Bullard, 358 B.R. 541 (Bankr.D.Conn.2007); In re Johnson, 402 B.R. 851, 852-53 (Bankr.N.D.Ind.2009). The most extensively researched and in-depth case where a court adopted the minority rule is In re Shat, 424 B.R. 854, 865 (Bankr.D.Nev.2010). Just two days ago, the Ninth Circuit Bankruptcy Appellate Panel issued an opinion joining the minority. Friedman v. P+P, LLC (In re Friedman), 466 B.R. 471 (9th Cir. BAP 2012) (Jury, J., dissenting) CONCLUSION The Court certifies its Order denying confirmation of chapter 11 plan, (ECF No. 115), to the Court of Appeals for the Fifth Circuit under 28 U.S.C. § 158(d)(l)(A)(i) and (ii). Exhibit A IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: PHILIP REED LIVELY, Debtors). Case No. 10-35471 Chapter 11 Judge Isgur MEMORANDUM OPINION This Memorandum Opinion concerns whether the Bankruptcy Abuse and Consumer Protection Act of 2005 (“BAPCPA”) abrogated the absolute priority rule for individual Chapter 11 cases. The Court holds that it did not. Factual Background There are no material factual disputes. The sole issue is whether BAPCPA abrogated the absolute priority rule for individual Chapter 11 cases. Philip Reed Lively initially filed a Chapter 13 bankruptcy petition. (ECF No. 1). The case was converted to a Chapter 11. (ECF No. 65). Lively filed his Amended Chapter 11 plan on August 19, 2011. (ECF No. 88). At the confirmation hearing, the Court preliminarily announced that it would deny confirmation of the plan for violating § 1129(b)(2)(B)(ii) — otherwise known’ as the absolute priority rule. The Court allowed briefing on the question of" }, { "docid": "17585592", "title": "", "text": "generally true that the changes instituted by BAPCPA intended for individual Chapter 11 cases to more closely track Chapter 13 cases”); In re Kamell, 451 B.R. 505, 507-12 (Bankr.C.D.Cal.2011) (no clear expression of Con-gressal intent to abrogate the absolute priority rule; the argument that Congress intended to treat individuals in Chapter 11 more like debtors in Chapter 13 was \"rather convoluted and strained” particularly since the overall thrust of BAPCPA was punitive in nature); In re Lindsey, 453 B.R. 886 (Bankr.E.D.Tenn.2011); In re Borton, 09-BR-00196, 2011 WL 5439285, at *4 (Bankr.D.Idaho Nov. 9, 2011); In re Gbadebo, 431 B.R. 222, 227-30 (Bankr.N.D.Cal.2010) (court found the statutory language to be unambiguous; \"included in the estate under section 1115” meant \"added” to the estate by § 1115; BAPCPA amendments to make Chapter 11 more like Chapter 13 not \"persuasive evidence”; BAPCPA not \"designed to enhance the individual debtor’s 'fresh start’ ”); In re Mullins, 435 B.R. 352, 359-61 (Bankr.W.D.Va.2010) (statute not ambiguous; broad view \"strained to find ambiguity”; had Congress intended to entirely eliminate absolute priority rule from individual Chapter 11 cases, there were clearer, easier and more direct ways to do it); In re Gelin, 437 B.R. 435, 440-43 (Bankr.M.D.Fla.2010) (broad view was plausible given text's unquestionable ambiguity; since neither § 103(a) nor § 541 was amended by BAPC-PA, \"there is no reason for section 1115 to 'absorb' and ‘supersede’ § 541 to define property of the estate”; broad view was \"an incredibly complicated and forced interpretation”; had Congress meant to exempt an individual debtor's entire estate, it would have referred to both § 541 and § 1115 in § 1129(b)(2)(B)(ii)); In re Karlovich, 456 B.R. 677, 679-82 (Bankr.S.D.Cal.2010) (statutoiy language unambiguous; had Congress intended to abrogate the absolute priority rule for individuals, it “could easily have added ‘except with respect to individuals’ at the beginning of § 1129(b)(2)(B)(ii), or stated that an individual could retain all property”; had Congress intended to make individual Chapter 11 cases more like Chapter 13 cases, Congress could have raised or eliminated the statutory debt ceilings for Chapter 13 cases); In re Steedley, 09-BR-50654, 2010" }, { "docid": "17585594", "title": "", "text": "WL 3528599, at *2-3 (Bankr.S.D.Ga. Aug. 27, 2010) (statutoiy language unambiguous; plain language of § 1115 does not subsume § 541; to the contraiy, § 541 specifically applies in all Chapter 11 cases and § 1115 adds postpetition property to the individual debt- or’s estate); In re Friedman, 466 B.R. 471, 484-92 (9th Cir. BAP 2012) (Jury, J., dissenting)- . See In re Friedman, 466 B.R. 471 (9th Cir. BAP 2012) (language not ambiguous and within the contextual statutoiy scheme and logic of plan confirmation requirements; \"included” is not a word of limitation; plain reading of § 1129(b)(2)(B)(ii), and § 1115 together mandates that absolute priority rule is not applicable; Chapter 13 does not contain an absolute priority rule; BAPCPA amendments adopted provisions to individual Chapter 11s, which are similar, if not identical, to Chapter 13); In re O’Neal, 490 B.R. 837 (Bankr.W.D.Ark.2013); In re Tucker, 479 B.R. 873 (Bankr.D.Or.2012) (vacating its prior order denying confirmation of the reorganization plan in light of intervening B.A.P. decision in In re Friedman, 466 B.R. 471); SPCP Group, LLC v. Biggins, 465 B.R. 316, 320-23 (M.D.Fla.2011) (affirming an unpublished bankruptcy court decision that broad interpretation applied, based upon the plain meaning of the statute, thus allowing the debtors to retain prepetition property, despite contrary holding from another bankruptcy court in the same district—In re Gelin, 437 B.R. 435); In re Shat, 424 B.R. 854, 862-68 (Bankr.D.Nev.2010) (narrow view \"underscored by other changes made at the same time” to make individual Chapter 11 cases more like Chap ter 13 cases); In re Johnson, 402 B.R. 851, 852-53 (Bankr.N.D.Ind.2009) (dicta that individual Chapter 11 debtor's plan need not satisfy the absolute priority rule of 11 U.S.C. § 1129(b)(2)(B)(ii)); In re Bullard, 358 B.R. 541, 544 (Bankr.D.Conn.2007); In re Tegeder, 369 B.R. 477, 479-81 (Bankr.D.Neb.2007) (court acknowledged absence of reported decisions, relied upon treatises and commentators, and found the statutory language unambiguous); In re Roedemeier, 374 B.R. 264, 273-76 & nn. 16-19 (Bankr.D.Kan.2007) (relying upon treatises and commentators, court noted that the changes made to make individual Chapter 11 cases function more like Chapter 13 cases" }, { "docid": "13310734", "title": "", "text": "claims in Class 5, and because U.S. Bank has voiced its intention to vote against the proposed Plan in the opposing papers, it is clear that Class 5 will reject the proposed Plan. The Debtors must therefore resort to the cramdown provisions of § 1129(b) because there would be a dissenting class of creditors, which does not satisfy the requirement of § 1129(a)(8). B. The Absolute Priority Rule Applies In addressing whether the absolute priority rule applies in Chapter 11 bankruptcy cases of individual debtors after BAPCPA, the courts are sharply divided. The courts that hold that the rule does not apply based on the so-called “broad” view of property of the estate that an individual debtor may retain under a confirmed plan pursuant to 11 U.S.C. § 1129(b)(2)(B)(ii) include: In re Tegeder, 369 B.R. 477, 479-481 (Bankr.D.Neb.2007); In re Roedemeier, 374 B.R. 264, 273-276 & nn. 15-19 (Bankr.D.Kan.2007); In re Shat, 424 B.R. 854, 862-868 (Bankr.D.Nev.2010); SPCP Group, LLC v. Biggins, 465 B.R. 316, 320-324 (M.D.Fla.2011); Friedman v. P+P, LLC (In re Friedman), 466 B.R. 471 (9th Cir. BAP 2012); see also In re Johnson, 402 B.R. 851, 852-853 (Bankr.N.D.Ind. 2009) (dicta that individual Chapter 11 debtor’s plan need not satisfy the absolute priority rule of 11 U.S.C. § 1129(b)(2)(B)(ii)); In re Hockenberry, 457 B.R. 646, 660-661 & n.14 (Bankr. S.D.Ohio 2011) (collecting cases on issue, but not reaching the issue because case decided on other grounds). The courts that hold that the absolute priority rule still applies, adhering to the so-called “narrow” view of property of the estate that an individual debtor may retain in a Chapter 11 plan, include: In re Gbadebo, 431 B.R. 222, 227-230 (Bankr.N.D.Cal.2010); In re Mullins, 435 B.R. 352, 359-361 (Bankr.W.D.Va.2010); In re Gelin, 437 B.R. 435, 440-443 (Bankr.M.D.Fla.2010); In re Stephens, 445 B.R. 816, 820-821 (Bankr.S.D.Tex.2011); In re Walsh, 447 B.R. 45, 47-49 (Bankr.D.Mass.2011); In re Maharaj, 449 B.R. 484, 491-494 (Bankr.E.D.Va.2011); In re Draiman, 450 B.R. 777, 820-822 (Bankr.N.D.Ill.2011); In re Kamell, 451 B.R. 505, 507-512 (Bankr.C.D.Cal.2011); In re Lindsey, 453 B.R. 886, 891-905 (Bankr.E.D.Tenn.2011); In re Karlo-vich, 456 B.R. 677," }, { "docid": "16026472", "title": "", "text": "case is closed, dismissed, or converted to a case under chapter 7, 12, or 13, whichever occurs first. (Emphasis added). Here, the key phrase for interpretation is contained in the preamble of the statute: “property of the estate includes, in addition to the property specified in section 541.” A. Before proceeding with the application of any interpretive rule, a brief review of the current state of the bankruptcy court caselaw in the Ninth Circuit is warranted. Two basic interpretations of §§ 1129(b)(2)(B)(ii) and 1115 have emerged. Under what is called the broad view, the bankruptcy court in In re Shat, 424 B.R. 854 (Bankr.D.Nev.2010) construed the phrase “in addition to the property specified in section 541” contained in § 1115 to mean that “[s]ection 1115 absorbs and then supersedes [sjection 541 for individual chapter 11 cases.” Id. 865. In turn, the court reasoned that if § 1129(b) (2) (B) (ii) excepts from the operation of the absolute priority rule that property “included” in § 1115, then the “exception extends to all property of the estate.” Id. Thus, in essence, In re Shat holds that the absolute priority rule does not apply in individual chapter 11 cases. Id. at 867. In reaching its decision, the Shat court relied upon the numerous revisions in BAPCPA which make individual chapter ll’s more like chapter 13 and also the few cases which had addressed the issue. Id. at 865-66. Nonetheless, the court acknowledged that its broad reading of § 1115 was “not without problems.” Id. at 867. Other bankruptcy courts, in equally well-reasoned decisions, have narrowly interpreted § 1115 to supplement § 541 by adding only the debtor’s postpetition earnings and other property acquired after the commencement of the case. See In re Tucker, 2011 WL 5926757 (Bankr.D.Or. 2011); In re Barton, 2011 WL 5439285 (Bankr.D.Idaho 2011); In re Kamell, 451 B.R. 505; In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Gbadebo, 431 B.R. 222. Under the narrow view, the absolute priority rule still applies to individual chapter 11 debtors with respect to their prepetition property, but postpetition property is not subject to" }, { "docid": "17585593", "title": "", "text": "from individual Chapter 11 cases, there were clearer, easier and more direct ways to do it); In re Gelin, 437 B.R. 435, 440-43 (Bankr.M.D.Fla.2010) (broad view was plausible given text's unquestionable ambiguity; since neither § 103(a) nor § 541 was amended by BAPC-PA, \"there is no reason for section 1115 to 'absorb' and ‘supersede’ § 541 to define property of the estate”; broad view was \"an incredibly complicated and forced interpretation”; had Congress meant to exempt an individual debtor's entire estate, it would have referred to both § 541 and § 1115 in § 1129(b)(2)(B)(ii)); In re Karlovich, 456 B.R. 677, 679-82 (Bankr.S.D.Cal.2010) (statutoiy language unambiguous; had Congress intended to abrogate the absolute priority rule for individuals, it “could easily have added ‘except with respect to individuals’ at the beginning of § 1129(b)(2)(B)(ii), or stated that an individual could retain all property”; had Congress intended to make individual Chapter 11 cases more like Chapter 13 cases, Congress could have raised or eliminated the statutory debt ceilings for Chapter 13 cases); In re Steedley, 09-BR-50654, 2010 WL 3528599, at *2-3 (Bankr.S.D.Ga. Aug. 27, 2010) (statutoiy language unambiguous; plain language of § 1115 does not subsume § 541; to the contraiy, § 541 specifically applies in all Chapter 11 cases and § 1115 adds postpetition property to the individual debt- or’s estate); In re Friedman, 466 B.R. 471, 484-92 (9th Cir. BAP 2012) (Jury, J., dissenting)- . See In re Friedman, 466 B.R. 471 (9th Cir. BAP 2012) (language not ambiguous and within the contextual statutoiy scheme and logic of plan confirmation requirements; \"included” is not a word of limitation; plain reading of § 1129(b)(2)(B)(ii), and § 1115 together mandates that absolute priority rule is not applicable; Chapter 13 does not contain an absolute priority rule; BAPCPA amendments adopted provisions to individual Chapter 11s, which are similar, if not identical, to Chapter 13); In re O’Neal, 490 B.R. 837 (Bankr.W.D.Ark.2013); In re Tucker, 479 B.R. 873 (Bankr.D.Or.2012) (vacating its prior order denying confirmation of the reorganization plan in light of intervening B.A.P. decision in In re Friedman, 466 B.R. 471); SPCP Group," }, { "docid": "16439039", "title": "", "text": "B.R. 884, 890 n. 3 (Bankr. S.D.Tex.2012) (citing by way of example to In re Shat, 424 B.R. 854 (Bankr.D.Nev.2010)), some courts have suggested that 11 U.S.C. § 1129(b)(2)(B)(ii)’s express reference to 11 U.S.C. § 1129(a)(14) is a scrivener’s error and that Congress actually intended the reference to instead be to (a)(15), thus making (b)(2)(B)(ii)'s exemption for individual debtors from the absolute priority rule (whatever its extent) subject to (a)(15)'s requirements and not those of (a)(14). While this may be what Congress intended, this court is simply not empowered to correct the possible scrivener’s error. . Specifically, in its unpublished In re Pfeifer slip opinion, the Bankruptcy Court for the Southern District of New York stated in a footnote that: [t]here is some question whether the absolute priority rule applies at all in an individual chapter 11 case. Compare In re Lively, 717 F.3d 406, 407 (5th Cir.2013) (holding absolute priority rule applies in an individual chapter 11 case); In re Stephens, 704 F.3d 1279, 1286-87 (10 th Cir.2013) (same); In re Maharaj, 681 F.3d 558, 568-70 (4* Cir.2012) (same); with Friedman v. P + P, LLC (In re Friedman), 466 B.R. 471, 482 (9th Cir. BAP 2012) (\"A plain reading of §§ 1129(b)(2)(B)(ii) and 1115 together mandates that the absolute priority rule is not applicable in individual chapter 11 debtor cases.”) This issue need not be decided here. In re Pfeifer, No. 12-13852, 2013 WL 5687512 at *3 n. 2 (Oct. 18, 2013) (italics in original, emphasis added). . See, e.g., In re O’Neal, 490 B.R. 837, 851 (Bankr.W.D.Ark.2013) (\"... there does not appear to be any other logical reason for all of the changes made exclusively to Chapter 11 for individuals except to make it work like Chapter 13”); In re Shat, 424 B.R. 854, 867-68 (Bankr.D.Nev.2010) (noting in favor of the \"broad reading” that \"Chapter 13 has no absolute priority rule, and as noted above, most of the changes effected by BAPCPA to individual chapter 11 debtors were part of an overall design of adapting various chapter 13 provisions to fit in chapter IT'); In re Roedemeier," }, { "docid": "16439040", "title": "", "text": "558, 568-70 (4* Cir.2012) (same); with Friedman v. P + P, LLC (In re Friedman), 466 B.R. 471, 482 (9th Cir. BAP 2012) (\"A plain reading of §§ 1129(b)(2)(B)(ii) and 1115 together mandates that the absolute priority rule is not applicable in individual chapter 11 debtor cases.”) This issue need not be decided here. In re Pfeifer, No. 12-13852, 2013 WL 5687512 at *3 n. 2 (Oct. 18, 2013) (italics in original, emphasis added). . See, e.g., In re O’Neal, 490 B.R. 837, 851 (Bankr.W.D.Ark.2013) (\"... there does not appear to be any other logical reason for all of the changes made exclusively to Chapter 11 for individuals except to make it work like Chapter 13”); In re Shat, 424 B.R. 854, 867-68 (Bankr.D.Nev.2010) (noting in favor of the \"broad reading” that \"Chapter 13 has no absolute priority rule, and as noted above, most of the changes effected by BAPCPA to individual chapter 11 debtors were part of an overall design of adapting various chapter 13 provisions to fit in chapter IT'); In re Roedemeier, 374 B.R. 264, 275 (Bankr.D.Kan.2007) (\"Many of BAPCPA’s changes to Chapter 11 ... are clearly drawn from the Chapter 13 model”). . As the Tenth Circuit Court of Appeals observed in In re Stephens, 704 F.3d 1279, 1284 (10th Cir.2013), the very existence of the starkly different conclusions numerous courts have reached on the supposedly \"plain” meaning of 11 U.S.C. §§ 1129(b)(2)(B)(ii) and 1115, in and of itself attests strongly to the text's ambiguity. . See Ice House America, LLC v. Cardin, 751 F.3d 734, 739 (6th Cir.2014); In re Lively, 717 F.3d 406, 410 (5th Cir.2013); In re Stephens, 704 F.3d 1279 (10th Cir.2013). . See, e.g., In re Stephens, 704 F.3d 1279, 1286 (10th Cir.2013) (“Nowhere in BAPCPA’s sparse legislative history is there an explanation of what changes result from § 1115.”); In re Friedman, 466 B.R. 471, 482-83 (9th Cir.2012) (acknowledging \"what may be a very weak universe of original resources” with which to refer in determining Congress' intent); In re Shat, 424 B.R. 854, 859-61 (Bankr.D.Nev.2010) (tracing the legislative process that" }, { "docid": "10782502", "title": "", "text": "interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property, except that in a case in which the debtor is an individual, the debtor may retain property included in the estate under section 1115, subject to the requirement of subsection (a)(14) of this section. The last provision — that the holder of a claim or interest junior to that of a dissenting class will not receive or retain property, is the so-called absolute priority rule. The language permitting individual debtors to retain “property included in the estate under section 1115” is an exception added by the Congress in 2005. Application of the absolute priority rule in individual cases has been the subject of considerable debate since the 2005 amendment. The debate turns on whether the phrase “retain property included in the estate under section 1115” means only the property obtained by the debtor post-petition, or includes virtually all of the debtor-in-possession’s assets. Courts interpreting §§ 1129(b)(2)(B) and 1115 as restricting the property a debtor may retain over the objection of an impaired unsecured class to post-petition acquisitions are said to have taken the “narrow” view. See In re Tucker, 2011 WL 5926757 (Bankr.D.Or.2011); In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Gbadebo, 431 B.R. 222 (Bankr.N.D.Cal.2010); In re Maharaj, 681 F.3d 558, 571 (4th Cir.2012). Other courts take the so-called “broad” view, holding that the sections, construed together, permit a debtor-in-possession to retain virtually all of its assets. See In re Friedman, 466 B.R. 471 (9th Cir. BAP 2012); In re Tegeder, 369 B.R. 477 (Bankr.D.Neb.2007); In re Roedemeier, 374 B.R. 264 (Bankr.D.Kan.2007); In re Shat, 424 B.R. 854 (Bankr.D.Nev.2010). The practical distinction between these approaches is stark: under the narrow approach, it is difficult, if not impossible, for an individual debtor to confirm a plan over the objection of an impaired unsecured class if the plan provides for the retention of any assets owned pre-petition. The individual debtor must either persuade every unsecured" }, { "docid": "13310735", "title": "", "text": "B.R. 471 (9th Cir. BAP 2012); see also In re Johnson, 402 B.R. 851, 852-853 (Bankr.N.D.Ind. 2009) (dicta that individual Chapter 11 debtor’s plan need not satisfy the absolute priority rule of 11 U.S.C. § 1129(b)(2)(B)(ii)); In re Hockenberry, 457 B.R. 646, 660-661 & n.14 (Bankr. S.D.Ohio 2011) (collecting cases on issue, but not reaching the issue because case decided on other grounds). The courts that hold that the absolute priority rule still applies, adhering to the so-called “narrow” view of property of the estate that an individual debtor may retain in a Chapter 11 plan, include: In re Gbadebo, 431 B.R. 222, 227-230 (Bankr.N.D.Cal.2010); In re Mullins, 435 B.R. 352, 359-361 (Bankr.W.D.Va.2010); In re Gelin, 437 B.R. 435, 440-443 (Bankr.M.D.Fla.2010); In re Stephens, 445 B.R. 816, 820-821 (Bankr.S.D.Tex.2011); In re Walsh, 447 B.R. 45, 47-49 (Bankr.D.Mass.2011); In re Maharaj, 449 B.R. 484, 491-494 (Bankr.E.D.Va.2011); In re Draiman, 450 B.R. 777, 820-822 (Bankr.N.D.Ill.2011); In re Kamell, 451 B.R. 505, 507-512 (Bankr.C.D.Cal.2011); In re Lindsey, 453 B.R. 886, 891-905 (Bankr.E.D.Tenn.2011); In re Karlo-vich, 456 B.R. 677, 679-682 (Bankr.S.D.Cal.2010); In re Lively, 467 B.R. 884 (Bankr.S.D.Tex.2012); see also In re Friedman, 466 B.R. at 484-492 (Jury, J., dissenting). The court will discuss several points that it considers most compelling in reaching its decision that the absolute priority rule applies in this case. Before the court begins its analysis of this issue, however, the court will address the impact of the recent decision in Friedman issued by the Ninth Circuit BAP. i. Friedman is Not Binding In this circuit, orders of the bankruptcy courts may be appealed to either the federal district court or the BAP. 28 U.S.C. § 158(a), (b)(1), (c)(1); see also Bank of Maui v. Estate Analysis, Inc., 904 F.2d 470, 471 (9th Cir.1990). The authoritative effect of a BAP decision remains an open question in this circuit. Bank of Maui, 904 F.2d at 472; see also Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220, 1225-1226 (9th Cir.2002). In Bank of Maui, the Ninth Circuit expressly declined to reach the issue, but it held that the binding" }, { "docid": "10782503", "title": "", "text": "1115 as restricting the property a debtor may retain over the objection of an impaired unsecured class to post-petition acquisitions are said to have taken the “narrow” view. See In re Tucker, 2011 WL 5926757 (Bankr.D.Or.2011); In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Gbadebo, 431 B.R. 222 (Bankr.N.D.Cal.2010); In re Maharaj, 681 F.3d 558, 571 (4th Cir.2012). Other courts take the so-called “broad” view, holding that the sections, construed together, permit a debtor-in-possession to retain virtually all of its assets. See In re Friedman, 466 B.R. 471 (9th Cir. BAP 2012); In re Tegeder, 369 B.R. 477 (Bankr.D.Neb.2007); In re Roedemeier, 374 B.R. 264 (Bankr.D.Kan.2007); In re Shat, 424 B.R. 854 (Bankr.D.Nev.2010). The practical distinction between these approaches is stark: under the narrow approach, it is difficult, if not impossible, for an individual debtor to confirm a plan over the objection of an impaired unsecured class if the plan provides for the retention of any assets owned pre-petition. The individual debtor must either persuade every unsecured class to accept the plan, pay every class in full (or a combination of the two), “buy” assets it intends to retain by making a contribution of new value to the estate (see In re Bonner Mall Partnership, 2 F.3d 899, 908-09 (9th Cir.1993)), or forego retention of any pre-petition assets. Courts adhering to the broad view permit the debtor-in-possession to retain pre-petition assets, effectively holding that Congress has abrogated the absolute priority rule for individual debtors. Friedman follows the broad rule, holding that “a plain reading of §§ 1129(b)(2)(B)(ii) and 1115 together mandate that the absolute priority rule is not applicable in individual chapter 11 debtor cases.” In re Friedman, 466 B.R. at 482. The panel resolves the narrow versus broad dispute by holding that Section 1115’s identification of estate property consists of the property contained in § 541 and the two post-petition acquired assets — newly acquired property and income. The so-called disputes over what “included” means in § 1129(b)(2)(B)(ii) and “in addition to” in § 1115 arise from misinterpretation of the words." }, { "docid": "17839023", "title": "", "text": "priority rule. See In re Friedman, 466 B.R. at 483; In re Shat, 424 B.R. at 868. In support, they cite a number of provisions that are essentially copied from Chapter 13. See, e.g., In re Roedemeier, 374 B.R. 264, 275-76 (Bankr.D.Kan.2007). Further, proponents of the broad view emphasize that abolishing the APR with respect to individual debtors does not leave unsecured creditors without any power or protection. Instead, unsecured creditors can rely on the safeguards of § 1129(a)(15)’s disposable income test, see In re Shat, 424 B.R. at 863-64, and § 1129(a)(7)’s “best interests” test, see Amicus Br. of Nat’l Ass’n of Consumer Bankr.Attorneys at 6. In contrast, those ascribing to the narrow view argue that, “[e]ach one of these new provisions,” even where modeled on Chapter 13, “appears designed to impose greater burdens on individual chapter 11 debtor’s rights so as to ensure a greater payout to creditors.” In re Gbadebo, 431 B.R. at 229 (emphasis added); see also H.R.Rep. No. 109-31, pt. 1, at 2-5, 80-81. Narrow view proponents urge that if Congress intended to abolish the APR with respect to individual debtors, “it would have done so in a far less convoluted way.” In re Maharaj, 681 F.3d at 565-66. For instance, Congress could have raised Chapter 13’s debt ceiling or expressly exempted individual debtors at the beginning of § 1129(b) (2) (B) (ii). See In re Karlovich, 456 B.R. 677, 682 (Bankr.S.D.Cal.2010). Moreover, BAPCPA’s legislative history lists several debtor protections but makes no mention of eliminating the APR. See H.R.Rep. No. 109-31, pt. 1, at 2, 17-18. Advocates for the narrow view argue that, had Congress intended such a drastic change, it surely would have included the amendment in its list of debtor protections. See In re Maharaj, 681 F.3d at 572. Instead, the amendments are best understood as preserving the status quo. See, e.g., id. at 569-70 (noting that the exemption of post-petition property and earnings ensures that the APR operates as it did prior to BAPCPA’s passage). Because both the statutory language and Congress’s intent are ambiguous, we heed the presumption against implied" }, { "docid": "17585591", "title": "", "text": "n. 13 (Bankr.E.D.Pa.2013); In re Martin, 497 B.R. 349 (Bankr.M.D.Fla.2013); In re Lively, 467 B.R. 884, 892-93 (Bankr.S.D.Tex.2012); In re Arnold, 471 B.R. 578, 587-88 (Bankr.C.D.Cal.2012); In re Lee Min Ho Chen, 482 B.R. 473 (Bankr.D.P.R.2012); In re Stephens, 445 B.R. 816, 820-21 (Bankr.S.D.Tex.2011) (if § 1115 were interpreted to include all property of the estate, the lan guage \"in addition to the property specified in section 541” in the preamble to § 1115(a) would render the words \"all property of the kind specified in section 541” in § 1115(a)(1) surplusage; also, the broad interpretation would render section 541 itself surplusage); In re Walsh, 447 B.R. 45, 47-49 (Bankr.D.Mass.2011) (\"because it deals with postpe-tition section 541(a) property (a most awkward construction), section 1115 does not include section 541(a) property as such”); In re Draiman, 450 B.R. 777, 820-22 (Bankr.N.D.Ill.2011) (court’s \"plain reading” of § 1115 was that it added property to the debtor’s estate which had already been established by § 541 and that § 1115 did not absorb § 541, even though “it is generally true that the changes instituted by BAPCPA intended for individual Chapter 11 cases to more closely track Chapter 13 cases”); In re Kamell, 451 B.R. 505, 507-12 (Bankr.C.D.Cal.2011) (no clear expression of Con-gressal intent to abrogate the absolute priority rule; the argument that Congress intended to treat individuals in Chapter 11 more like debtors in Chapter 13 was \"rather convoluted and strained” particularly since the overall thrust of BAPCPA was punitive in nature); In re Lindsey, 453 B.R. 886 (Bankr.E.D.Tenn.2011); In re Borton, 09-BR-00196, 2011 WL 5439285, at *4 (Bankr.D.Idaho Nov. 9, 2011); In re Gbadebo, 431 B.R. 222, 227-30 (Bankr.N.D.Cal.2010) (court found the statutory language to be unambiguous; \"included in the estate under section 1115” meant \"added” to the estate by § 1115; BAPCPA amendments to make Chapter 11 more like Chapter 13 not \"persuasive evidence”; BAPCPA not \"designed to enhance the individual debtor’s 'fresh start’ ”); In re Mullins, 435 B.R. 352, 359-61 (Bankr.W.D.Va.2010) (statute not ambiguous; broad view \"strained to find ambiguity”; had Congress intended to entirely eliminate absolute priority rule" }, { "docid": "17839028", "title": "", "text": "B.R. 851 (Bankr.N.D.Ind.2009); In re Roedemeier, 374 B.R. 264 (Bankr.D.Kan.2007); In re Tegeder, 369 B.R. 477 (Bankr.D.Neb.2007). . In re Maharaj, 681 F.3d 558 (4th Cir.2012) (affirming the bankruptcy court’s decision in 449 B.R. 484 (Bankr.E.D.Va.2011)); In re Lee Min Ho Chen, No. 11-08170 BKT, 2012 WL 5463256 (Bankr.D.P.R. Nov. 9, 2012); In re Tucker, 479 B.R. 873 (Bankr.D.Or.2012); In re Arnold, 471 B.R. 578 (Bankr.C.D.Cal.2012); In re Lively, 467 B.R. 884 (Bankr.S.D.Tex.2012); In re Borton, No. 09-00196-TLM, 2011 WL 5439285 (Bankr.D.Idaho Nov. 9, 2011); In re Lindsey, 453 B.R. 886 (Bankr. E.D.Tenn.2011); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Draiman, 450 B.R. 777 (Bankr.N.D.Ill.2011); In re Walsh, 447 B.R. 45 (Bankr.D.Mass.2011); In re Stephens, 445 B.R. 816 (Bankr.S.D.Tex.2011); In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Gelin, 437 B.R. 435 (Bankr.M.D.Fla.2010); In re Steedley, No. 09-50654, 2010 WL 3528599 (Bankr.S.D.Ga. Aug. 27, 2010); In re Mullins, 435 B.R. 352 (Bankr.W.D.Va.2010); In re Gbadebo, 431 B.R. Ill (Bankr.N.D.Cal.2010); see also In re Friedman, 466 B.R. at 476 (discussing the bankruptcy court’s determination—in an unpublished February 17, 2011 order—that the APR applies to individual Chapter 11 debtors)." }, { "docid": "17585575", "title": "", "text": "paths. Some have held that a plain reading of the statute produces that result. Others, finding the statutory language ambiguous, rely on their view of the legislative history to conclude that the similarity of BAPCPA amendments to the existing Chapter 13 provisions suggests that Congress intended to conform the procedures in Chapters 11 and 13. In re Roedemeier, 374 B.R. 264, 275-76 (Bankr.D.Kan.2007). In other words, so they conclude, because BAPCPA made changes that imposed many Chapter 13-like requirements on individual Chapter 11 debtors and Chapter 13 does not include an absolute priority rule, Congress must have intended to abrogate the absolute priority rule in individual Chapter 11 cases. Id. at 276. Narrow view courts reject this approach, reasoning that “[j]ust because Chapter 13 does not have the absolute priority rule is not alone sufficient to justify the rather tortured reading of §§ 1129(b)(2)(B)(ii) and 1115....” In re Kamell, 451 B.R. at 505 (Bankr.C.D.Cal.2011). According to some narrow view courts, it is “far more likely” that the purpose of the new language in § 1129(b) (2) (B) (ii) was to make the absolute priority rule the same for individual and non-individual Chapter 11 debtors as it was prior to BAPCPA. See In re Karlovich, 456 B.R. 677, 681 (Bankr.S.D.Cal.2010); In re Tucker, 10-BR-67281, 2011 WL 5926757, at *2 (Bankr.D.Or. Nov. 28, 2011) (adopting the Karlo-vich reasoning and holding) (vacated in light of subsequent B.A.P. decision in In re Friedman, 466 B.R. 471). These courts reason that prior to BAPCPA, the estate did not include post-petition acquired property and earnings for individual and non-individual debtors alike. Consequently, a Chapter 11 debtor, individual or non-individual, could retain post-petition acquired property and earnings without violating the absolute priority rule. Section 1115 added post-petition acquired property and earnings to the individual debtor’s estate. Without the corresponding change to § 1129(b)(2)(B)(ii), an individual debtor would no longer be able to retain post-petition acquired property and earnings if the plan was “crammed-down,” but non-individual debtors would. The narrow view courts posit that language exempting § 1115 property from the absolute priority rule of § 1129(b)(2)(B)(ii) was" }, { "docid": "12644174", "title": "", "text": "of the entry of the contested ruling, as required by 28 U.S.C. § 158(d)(2)(E). (ECF No. 125). Lively’s appeal to the District Court has not yet been docketed in accordance with Bankruptcy Rule 8007(b). Therefore, the matter is still pending in the bankruptcy court. Fed. Rule BankrP. 8001(f)(2). The bankruptcy court may therefore rule on the request for direct certification under 28 U.S.C. § 158. Analysis Section 158(d)(2)(A)(i) [“No Controlling Decision”] The Order should be certified because it involves the above question of law, as to which there is no controlling decision by the Fifth Circuit Court of Appeals or by the Supreme Court of the United States. Section 158(d) (2) (A) (ii) [“Conflicting Decisions”] Although lower courts within the Fifth Circuit have not reached conflicting decisions, there have been conflicting decisions issued by lower courts elsewhere. A decision by the Ninth Circuit Bankruptcy Appellate panel appears to be the only appellate decision. A majority of courts have ruled that the absolute priority rule still applies in individual Chapter 11 cases. See In re Mullins, 435 B.R. 352 (Bankr.W.D.Va.2010); In re Gelin, 437 B.R. 435 (Bankr.M.D.Fla.2010); In re Gbadebo, 431 B.R. 222 (Bankr.N.D.Cal.2010); In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Walsh, 447 B.R. 45 (Bankr.D.Mass.2011); In re Stephens, 445 B.R. 816 (Bankr.S.D.Tex.2011); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Maharaj, 449 B.R. 484 (Bankr.E.D.Va.2011). A minority of courts have ruled that the absolute priority rule no longer applies in individual Chapter 11 cases. See In re Roedemeier, 374 B.R. 264 (Bankr.D.Kan.2007); In re Tegeder, 369 B.R. 477 (Bankr.D.Neb.2007); In re Bullard, 358 B.R. 541 (Bankr.D.Conn.2007); In re Johnson, 402 B.R. 851, 852-53 (Bankr.N.D.Ind.2009). The most extensively researched and in-depth case where a court adopted the minority rule is In re Shat, 424 B.R. 854, 865 (Bankr.D.Nev.2010). Just two days ago, the Ninth Circuit Bankruptcy Appellate Panel issued an opinion joining the minority. Friedman v. P+P, LLC (In re Friedman), 466 B.R. 471 (9th Cir. BAP 2012) (Jury, J., dissenting) CONCLUSION The Court certifies its Order denying confirmation of chapter 11 plan, (ECF No. 115), to the" }, { "docid": "17839027", "title": "", "text": "see also Pub.L. No. 456, 66 Stat. 420, 433 (1952). However, in 1978, Congress adopted the Bankruptcy Code, which again codified the APR as applied to all reorganizations under Chapter 11 (including individual debtors). See Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 202, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988). Accordingly, \"no Chapter 11 reorganization plan [could] be confirmed over the creditors' legitimate objections ... if it fail[ed] to comply with the [APR].” Id. This rule remained undisputed until BAPCPA’s 2005 enactment. . Section 541 defines property of the estate to include \"all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 TJ.S.C. § 541. Section 103, in turn, provides that § 541 applies in Chapter 11 cases, including those which involve individual debtors. See 11 U.S.C. § 103(a). . In re Friedman, 466 B.R. 471 (9th Cir. BAP 2012); SPCP Grp., LLC v. Biggins, 465 B.R. 316 (M.D.Fla.2011) (affirming unpublished decision of bankruptcy court); In re Shat, 424 B.R. 854 (Bankr.D.Nev.2010); In re lohnson, 402 B.R. 851 (Bankr.N.D.Ind.2009); In re Roedemeier, 374 B.R. 264 (Bankr.D.Kan.2007); In re Tegeder, 369 B.R. 477 (Bankr.D.Neb.2007). . In re Maharaj, 681 F.3d 558 (4th Cir.2012) (affirming the bankruptcy court’s decision in 449 B.R. 484 (Bankr.E.D.Va.2011)); In re Lee Min Ho Chen, No. 11-08170 BKT, 2012 WL 5463256 (Bankr.D.P.R. Nov. 9, 2012); In re Tucker, 479 B.R. 873 (Bankr.D.Or.2012); In re Arnold, 471 B.R. 578 (Bankr.C.D.Cal.2012); In re Lively, 467 B.R. 884 (Bankr.S.D.Tex.2012); In re Borton, No. 09-00196-TLM, 2011 WL 5439285 (Bankr.D.Idaho Nov. 9, 2011); In re Lindsey, 453 B.R. 886 (Bankr. E.D.Tenn.2011); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Draiman, 450 B.R. 777 (Bankr.N.D.Ill.2011); In re Walsh, 447 B.R. 45 (Bankr.D.Mass.2011); In re Stephens, 445 B.R. 816 (Bankr.S.D.Tex.2011); In re Karlovich, 456 B.R. 677 (Bankr.S.D.Cal.2010); In re Gelin, 437 B.R. 435 (Bankr.M.D.Fla.2010); In re Steedley, No. 09-50654, 2010 WL 3528599 (Bankr.S.D.Ga. Aug. 27, 2010); In re Mullins, 435 B.R. 352 (Bankr.W.D.Va.2010); In re Gbadebo, 431 B.R. Ill (Bankr.N.D.Cal.2010); see also In re Friedman, 466 B.R. at 476 (discussing the bankruptcy court’s determination—in" }, { "docid": "12644183", "title": "", "text": "7, 12, or 13, whichever occurs first; and (2) earnings from services performed by the debtor after commencement but before the case is closed, dismissed, or converted to a case under chapter 7, 12, or 13, whichever occurs first. 11 U.S.C. § 1115. Were it not for § 1115(a)(2), money earned by the debtor for services performed after the commencement of the case would not otherwise be estate property. See 11 U.S.C. § 541(a)(6). Interpreting “Included in the Estate Under Section 1115” There is a split of authority regarding the proper interpretation of the phrase “included in the estate under section 1115.” The issue is important because § 1129(b)(2)(B)(ii) excepts property “included in the estate under section 1115” from the absolute priority rule in individual chapter 11 cases. The majority interprets this language to mean property added to the estate by § 1115. See, e.g., In re Borton, 2011 WL 5439285 (Bankr.D.Idaho Nov. 9, 2011); In re Kamell, 451 B.R. 505 (Bankr.C.D.Cal.2011); In re Maharaj, 449 B.R. 484 (Bankr.E.D.Va.2011). This is known as the “narrow” interpretation. The result of this interpretation is that the exception applies to income received by the debtor for postpetition services, but not to assets owned as of the petition date. The minority interprets the language much more broadly. See, e.g., In re Shat, 424 B.R. 854 (Bankr.D.Nev.2010); In re Johnson, 402 B.R. 851 (Bankr.N.D.Ind.2009); In re Roedemeier, 374 B.R. 264 (Bankr.D.Kan.2007). These courts view § 1115 as supplanting § 541, meaning that § 1115 actually defines property of the estate in individual chapter 11 cases instead of merely adding property to the estate as defined by § 541. As § 1115 supplants § 541, the argument goes, property “included in the estate under section 1115” in fact references the entire estate. This is referred to as the “broad” interpretation. The result is an exception for all property of the estate in individual Chapter 11 cases. Lively argues for the “broad” interpretation. The leading case adopting the “broad” interpretation is In re Shat, 424 B.R. 854 (Bankr.D.Nev.2010). This opinion will therefore address Shat and explain how" } ]

[ { "docid": "1934638", "title": "", "text": "the guilty plea.” United States v. Jordan, 57 M.J. 236 (2002) (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). “For simple military offenses whose elements are commonly known and understood by servicemembers, an explanation of the elements of the offense is not required to establish the providence of a guilty plea if the record otherwise makes clear that the accused understood those elements.” Nystrom, 39 M.J. at 701 (citing United States v. Kilgore, 21 U.S.C.M.A. 35, 44 C.M.R. 89, 1971 WL 12456 (1971)). In any event, a military accused is not entitled to a “law school lecture” on legal concepts applicable to a guilty plea. See Roeseler, 55 M.J. at 289 (affirming guilty plea to conspira cy and noting no requirement to explain “difference between bilateral and unilateral conspiracy”). With regard to the offenses of wrongful appropriation and forgery, the military judge’s failure to define and explain the terms “possession,” “owner,” “belongs,” “took,” “falsely altered,” and “intent to defraud” in this case reflects a lack of attention to detail. See Ray, 44 M.J. at 838; United States v. Hansen, — M.J.-, slip op. at 4 (N.M.Ct.Crim.App. 14 Jan. 2003). However the three most critical requirements for a provident guilty plea were met. Appellant admitted the facts necessary to establish the charges, he expressed a belief in his own guilt, and there were no inconsistencies between the facts and the pleas. See Jones, 34 M.J. at 272 (citing Davenport, 9 M.J. at 366-67). Appellant clearly understood the wrongfulness of his actions as evidenced by his guilty plea, his testimony, and the discussion of the stipulation of fact with the military judge. This understanding, along with consideration of the entire record, allows us to be confident that appellant’s guilty pleas were provident and that “the dictates of Article 45, [UCMJ,] 10 U.S.C. § 845, R.C.M. 910, and Care and its progeny have been met.” Jordan, 57 M.J. at 239. Conclusion We have reviewed the matters personally raised by appellant under United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find them to be without merit. The findings of guilty and" } ]

[ { "docid": "15879562", "title": "", "text": "the proposition that mere inactive presence at the scene of a crime does not establish guilt. In response, the Government argues that Appellant’s failure to intervene served as encouragement, which is in and of itself sufficient to sustain the conviction for assault on the theory of aiding and abetting. In support of its position, the Government cites two lower court cases, United States v. Void, 17 M.J. 740, 743 (A.C.M.R.1983), and United States v. Toland, 19 C.M.R. 570 (N.B.R.1955). According to the Government, both cases stand for the proposition that inaction can lead to an inference of aid or encouragement and therefore liability as a principal under Article 77, UCMJ. Discussion “Pleas of guilty should not be set aside on appeal unless there is ‘a substantial basis in law and fact for questioning the guilty plea.’” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991) (quotation marks omitted)). “A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion.” Id. (citing United States v. Gallegos, 41 M.J. 446 (C.A.A.F.1995)). A military judge may not accept a guilty plea unless he makes “such inquiry of the accused” that satisfies him of a “factual basis for the plea.” R.C.M. 910(e). See United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969) (“[T]he record of trial ... must reflect ... that the military trial judge ... has questioned the accused about what he did or did not do, and what he intended____”). “[T]he accused must admit every element of the offense(s) to which the accused pleads guilty.” R.C.M. 910(e) Discussion. See United States v. Barton, 60 M.J. 62, 64 (C.A.A.F.2004) (“[The] factual predicate is sufficiently established if ‘the factual circumstances as revealed by the accused himself objectively support that plea.’ ”) (quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980)); see also United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F.2002) (finding that “ ‘mere conclusions of law recited by an accused ... are insufficient to provide a factual basis for a guilty plea’" }, { "docid": "15879563", "title": "", "text": "(citing United States v. Gallegos, 41 M.J. 446 (C.A.A.F.1995)). A military judge may not accept a guilty plea unless he makes “such inquiry of the accused” that satisfies him of a “factual basis for the plea.” R.C.M. 910(e). See United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969) (“[T]he record of trial ... must reflect ... that the military trial judge ... has questioned the accused about what he did or did not do, and what he intended____”). “[T]he accused must admit every element of the offense(s) to which the accused pleads guilty.” R.C.M. 910(e) Discussion. See United States v. Barton, 60 M.J. 62, 64 (C.A.A.F.2004) (“[The] factual predicate is sufficiently established if ‘the factual circumstances as revealed by the accused himself objectively support that plea.’ ”) (quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980)); see also United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F.2002) (finding that “ ‘mere conclusions of law recited by an accused ... are insufficient to provide a factual basis for a guilty plea’ ”) (quoting United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.1996)). According to the explanation accompanying Article 77, UCMJ, to be guilty as a principal under an aiding and abetting theory, a person must: (i) Assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist, encourage, advise, counsel, or command another in the commission of the offense; and (ii) Share in the criminal purpose of design. In some circumstances, inaction may make one liable as a party, where there is a duty to act. If a person ... has a duty to interfere in the commission of an offense, but does not interfere, that person is a party to the crime if such a noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator. Manual for Courts-Martial, United States pt. IV, para. l(b)(i), (ii) (2005 ed.) (MCM)', see United States v. Crouch, 11 M.J. 128 (C.M.A.1981) (upholding an aiding and abetting conviction where appellant had a duty to act because, while performing guard duty, he failed" }, { "docid": "18470197", "title": "", "text": "him specific questions regarding the injuries he received as a result of the assault: DC: And how long did you stay in the Veterans hospital? ACC: I was in the Veterans Hospital for 22 days, sir. DC: And what — did they tell you the extent of the injuries? ACC: A contusion to the front of the brain which basically means bruising. The back of my brain was bleeding and swelling. I had an inner skull fracture on my left side, and another skull fracture on the back of my head, sir. I completely lost all my hearing in my left ear, and part of my sight in my left eye, sir. DC: And do these injuries still effect [sic] you today? ACC: Yes, sir. This concluded Appellant’s unsworn statement, and the hearing proceeded to announcement of the sentence. In response to the specified issue Appellant asserts that the findings and sentence should be set aside for the military judge’s failure to inquire further into Appellant’s statement regarding his diagnosis for bipolar disorder. II “A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996) (citing United States v. Gallegos, 41 M.J. 446 (C.A.A.F.1995)). “Pleas of guilty should not be set aside on appeal unless there is ‘a “substantial basis” in law and fact for questioning the guilty plea.’ ” Id. (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). “If an accused ‘sets up matter inconsistent with the plea’ at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.1996) (quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000)); Rule for Courts-Martial (R.C.M.) 910(h)(2). “Once the military judge has accepted a plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record.” Garcia, 44 M.J. at 498. “A" }, { "docid": "1101516", "title": "", "text": "(N.C.M.R.1975). “The bottom line ... is that rejection of the plea requires that the record of trial show a ‘substantial basis’ in law and fact for questioning the guilty plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). In this case the appellant was informed of the meaning of the term “military property,” acknowledged his understanding of that term, and admitted the two checks were “military property.” Record at 17, 26. Nonetheless, the appellant asserts something was omitted from the guilty plea inquiry, that is, facts, not legal conclusions, that support the checks were “military property.” More particularly, he asserts the U.S. Treasury checks must be of a “unique military nature” or were “put to a military function,” before they qualify as “military property,” and in the absence of such a showing in the record, the plea to larceny of “military property” is improvident. Appellant’s Brief at 2-3 (citing United States v. Schelin, 15 M.J. 218 (C.M.A.1983), United States v. Spradlin, 33 M.J. 870 (N.M.C.M.R.1991), and United States v. Ford, 30 M.J. 871 (A.F.C.M.R.1990)). We must, therefore, examine the record of trial and the applicable law to determine whether a substantial basis for questioning the appellant’s guilty pleas in this respect exists. At the outset, we observe that this challenge to the providence of the pleas actually concerns two questions: (1) Who was the owner of the checks and (2) were the checks “military property”? Article 121(a), UCMJ, provides in part: Any person subject [to the UCMJ] who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind with intent permanently to deprive or defraud another person of the use and benefit of the property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny. 10 U.S.C. § 921(a) (brackets supplied). It is axiomatic that checks may be the subject of a larceny. E.g., United States v. Windham, 15 C.M.A. 523, 36 C.M.R." }, { "docid": "16068880", "title": "", "text": "effect on the maximum authorized punishment or the sentence. DISCUSSION “A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996) (citing United States v. Gallegos, 41 M.J. 446 (C.A.A.F.1995)). “Pleas of guilty should not be set aside on appeal unless there is ‘a substantial basis in law and fact for questioning the guilty plea.’ ” Id. (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). “If an accused ‘sets up matter inconsistent with the plea’ at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.1996) (quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000)); see Rule for Courts-Martial (R.C.M.) 910(h)(2). Once a military judge has accepted a plea as provident and has entered findings based on it, this Court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence on the record. Garcia, 44 M.J. at 498. “A ‘mere possibility’ of such a conflict is not a sufficient basis to overturn the trial results.” Id. (quoting Prater, 32 M.J. at 436). The elements of unauthorized absence under Article 86, UCMJ, are: (a) That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be; (b) That the absence was without authority from anyone competent to give him or her leave; and (c) That the absence was for a certain period of time. Manual for Courts-Martial, United States pt. IV, para. 10.b.(3) (2005 ed.) (MCM). Unauthorized absence can be terminated in five ways, including surrender to military authority. MCM pt. IV, para. 10.e.(10). According to the MCM, “surrender occurs when a person presents himself or herself to any military authority, whether or not a member of the same armed force, notifies that authority of his or her unauthorized absence status, and submits or demonstrates a willingness to submit" }, { "docid": "8415268", "title": "", "text": "providently pleaded. According to Appellant, the fact that he stole $10,000 in merchandise from the store on June 22, 2000, does not establish that he conspired to steal over $100 in merchandise from the same store one day earlier. In short, a plea must stand on its own four legs, with a factual basis for each element of each offense. The Government responds that the record as a whole establishes each element of the offense. Further, there is nothing in the record that suggests Appellant’s plea to this offense was not knowing, voluntary, or complete. Appellant understood the value of the merchandise in question and admitted to this element of the offense. Thus, the purpose of Care and its progeny are satisfied. Discussion “[A] guilty plea is an admission of all the elements of a formal criminal charge[.]” Id. at 539, 40 C.M.R. at 251 (quoting McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). Therefore, before accepting a guilty plea, a military judge must explain the elements of the offense and ensure that a factual basis for each element exists. United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F.1996). “It is not enough to elicit legal conclusions. The military judge must elicit facts to support the plea of guilty.” United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.2002)(citing United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.1996)). This factual predicate is sufficiently established if “the factual circumstances as revealed by the accused himself objectively support that plea____” United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980). As a result, “the issue must be analyzed in terms of providence of his plea not sufficiency of the evidence.” Faircloth, 45 M.J. at 174. When considering the adequacy of the plea, this Court considers the entire record to determine whether the dictates of Article 45, UCMJ, 10 U.S.C. § 845 (2000), Rule for Courts-Martial 910, and Care and its progeny have been met. Jordan, 57 M.J. at 239. We will not overturn the acceptance of a guilty plea unless there is a “substantial basis in law" }, { "docid": "12565267", "title": "", "text": "authority is a “bedrock of military due process.” R.C.M. 910(j) provides a bright-line rule— an unconditional guilty plea “which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made.” “The point ... is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.” Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). [2] Objections that do not relate to factual issues of guilt are not covered by this bright-line rule, but the general principle still applies: An unconditional guilty plea generally “waives all defects which are neither jurisdictional nor a deprivation of due process of law.” United States v. Rehorn, 9 C.M.A. 487, 488-89, 26 C.M.R. 267, 268-69 (1958) (finding a guilty plea waived failure to provide an accused with certified counsel for his Article 32, UCMJ, hearing). Nevertheless this Court has found on occasion that an unconditional guilty plea by itself does not waive an objection on appeal to a nonfactual issue. See, e.g., United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F.2004) (unconditional guilty plea does not waive a multiplicity objection if the specifications are “facially dupli-cative”); United States v. Pratchard, 61 M.J. 279, 280 (C.A.A.F.2005) (guilty plea does not waive speedy trial objection under Article 10, UCMJ, 10 U.S.C. § 810 (2000) (citing United States v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005))); United States v. Boyett, 42 M.J. 150, 152 (C.A.A.F.1995) (“guilty plea does not waive the defect of a specification that fails to state an offense”). As long as the individual who convenes the court-martial is one of the persons described by statute as having such authority, see Articles 22(a) or 23(a), UCMJ, the disqualification of the convening authority under Articles 22(b) or 23(b), UCMJ, for being an accuser under Article 1(9), UCMJ, does not deprive the court-martial of jurisdiction. United States v." }, { "docid": "16015947", "title": "", "text": "further explanation or discussion. The stipulation of fact refers to the sick slip as a “public record,” but fails to define that term. Appellant told the military judge the document she altered was the “original form.” Appellant also agreed that altering this document was prejudicial to good order and discipline because “you can’t just have everybody going out and changing documents and ... not doing PT, because you need discipline to have a good soldier.” LAW AND DISCUSSION A providence inquiry into a guilty plea must establish that the accused believes and admits he is guilty of the offense and the factual circumstances admitted by the accused objectively support the guilty plea. United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F.1996). We review a military judge’s acceptance of a guilty plea for an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996). We will not overturn a military judge’s acceptance of a guilty plea unless the record of trial shows a substantial basis in law and fact for questioning the guilty plea. United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.2002) (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). Altering a Public Record The elements of the offense of altering a public record in violation of Article 134, UCMJ, are: (1) That the accused altered, concealed, removed, mutilated, obliterated, destroyed, or took with the intent to alter, conceal, remove, mutilate, obliterate, or destroy, a certain public record; (2) That the act of the accused was willful and unlawful; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Manual for Courts-Martial, United States (2002 ed.) [hereinafter MCM], Part IV, para. 99(b). This offense is based upon and “is ‘substantially identical’ with the crime denounced by 18 U.S.C. § 2071, [which] is designed to ‘prevent any conduct which deprives the government of the use of its documents ____’ ” United States v. Oglivie, 29 M.J. 1069, 1071 (A.C.M.R.1990) (quoting United" }, { "docid": "18470198", "title": "", "text": "military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996) (citing United States v. Gallegos, 41 M.J. 446 (C.A.A.F.1995)). “Pleas of guilty should not be set aside on appeal unless there is ‘a “substantial basis” in law and fact for questioning the guilty plea.’ ” Id. (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). “If an accused ‘sets up matter inconsistent with the plea’ at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.1996) (quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000)); Rule for Courts-Martial (R.C.M.) 910(h)(2). “Once the military judge has accepted a plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record.” Garcia, 44 M.J. at 498. “A ‘mere possibility’ of such a conflict is not a sufficient basis to overturn the trial results.” Id. (quoting Prater, 32 M.J. at 436). As in United States v. Phillippe, 63 M.J. 307 (C.A.A.F.2006), of last term, we are again called upon to determine whether the military judge’s duty to inquire further has been triggered by disclosures made during, or subsequent to, the plea colloquy. In Phillippe, we held that “when, either during the plea inquiry or thereafter, and in the absence of prior disavowals ... circumstances raise a possible defense, a military judge has a duty to inquire further to resolve the apparent inconsistency.” Id. at 310-11 (citation omitted). The existence of an apparent and complete defense is necessarily inconsistent with a plea of guilty. This was the case in Phillippe, where early termination of the alleged period of unauthorized absence was raised, presenting an apparent ambiguity or inconsistency with the plea thereby warranting further inquiry. Id. at 311; see also United States v. Pinero, 60 M.J. 31, 35 (C.A.A.F.2004); United States v. Reeder, 22" }, { "docid": "22230879", "title": "", "text": "On or about January 20, 2005, Appellant attempted to mail a fragmentation grenade and a confiscated pistol to his parents’ home. During the plea inquiry he claimed to have no memory of committing the offense; however, Appellant remembered planning it, and hoping he would be caught and sent home. Dr. Smith stated that at the time of the offense, Appellant suffered from Bipolar I Disorder with psychotic features. Upon hearing this testimony, the military judge commented that Dr. Smith’s testimony was at odds with Appellant’s guilty plea. After being recalled to the stand, Dr. Smith testified that he had no indication that Appellant did not appreciate the wrongfulness of his actions at the time of the offense. Following Dr. Smith’s testimony, the military judge determined that Appellant’s pleas remained provident. II. During a guilty plea inquiry the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). “A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996); see also United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007); United States v. Tippit, 65 M.J. 69, 81 (C.A.A.F.2007); United States v. Thomas, 65 M.J. 132, 134 (C.A.A.F.2007); United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F.2006); United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F.2006); United States v. Erickson, 61 M.J. 230, 232 (C.A.A.F.2005). A military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea — an area in which we afford significant deference. United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002) . Additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion. United States v. Griggs, 61 M.J. 402, 406 (C.A.A.F.2005); United States v. Wardle, 58 M.J. 156, 157 (C.A.A.F. 2003) ; United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.1995). There exist strong arguments in favor of giving broad discretion to" }, { "docid": "8415279", "title": "", "text": "overturn a guilty plea unless there is a substantial basis in law and fact for questioning the providence of the plea. United States v. Russell, 50 M.J. 99, 100 (C.A.A.F.1999); United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). We will consider the whole record, including references to a stipulation of fact, to find that a guilty plea inquiry is adequate. See, e.g., United States v. Sweet, 42 M.J. 183 (C.A.A.F.1995). Looking at the entire record in this case, there is no discussion with Appellant as to whether he intended to steal more than $100 in merchandise from the Powerzone on June 21. There is no reference to the value of this merchandise in the stipulated facts. The only basis that can be found is the following statement of the military judge, after he listed the elements of larceny in regard to Charge 1, Specification 1: Okay, Numerous specifications on this charge sheet would normally require me to advise you again and again of the crime— the elements and the definitions associated with that crime. In the interest of time, we could dispense with me reading that to you over and over again if you can assure me that you understand the elements of the crime of larceny and the definitions that I have given you. Appellant responded, “Yes, Sir.” to the military judge’s question as to whether he understood the elements and definitions. The mere recitation of the elements of a crime, however, and an accused’s rote response is simply not sufficient to meet the requirements of Article 45, Uniform Code of Military Justice, 10 U.S.C. § 845 (2000), United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969) and its progeny, or Rule for Courts-Martial 910 [hereinafter R.C.M.]. In recognition of this requirement, the military judge revisited Charge I, Specification 1 and specifically elicited Appellant’s response to each element, including that the merchandise had a value of more than $100. The military judge failed to conduct a similar inquiry for Specification 2. Because of the requirement for notice pleading in military practice, the specifications of charged offenses" }, { "docid": "8415269", "title": "", "text": "the offense and ensure that a factual basis for each element exists. United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F.1996). “It is not enough to elicit legal conclusions. The military judge must elicit facts to support the plea of guilty.” United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.2002)(citing United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.1996)). This factual predicate is sufficiently established if “the factual circumstances as revealed by the accused himself objectively support that plea____” United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980). As a result, “the issue must be analyzed in terms of providence of his plea not sufficiency of the evidence.” Faircloth, 45 M.J. at 174. When considering the adequacy of the plea, this Court considers the entire record to determine whether the dictates of Article 45, UCMJ, 10 U.S.C. § 845 (2000), Rule for Courts-Martial 910, and Care and its progeny have been met. Jordan, 57 M.J. at 239. We will not overturn the acceptance of a guilty plea unless there is a “substantial basis in law and fact for” doing so. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). In the specification at issue, Appellant was charged with conspiracy to commit larceny of property with value more than $100. The specific elements of larceny are specified in the Manual for Courts-Martial, United States (2002 ed.) [hereinafter MCM], Part IV, para. 46.b.(l): (a) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person; (b) That the property belonged to a certain person; (c) That the property was of a certain value, or of some value; and (d) That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused of for any person other than the owner. Article 121 provides for gradations in the maximum sentence depending on the value and type of the property in question. Appellant was charged with three" }, { "docid": "8415270", "title": "", "text": "and fact for” doing so. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). In the specification at issue, Appellant was charged with conspiracy to commit larceny of property with value more than $100. The specific elements of larceny are specified in the Manual for Courts-Martial, United States (2002 ed.) [hereinafter MCM], Part IV, para. 46.b.(l): (a) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person; (b) That the property belonged to a certain person; (c) That the property was of a certain value, or of some value; and (d) That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused of for any person other than the owner. Article 121 provides for gradations in the maximum sentence depending on the value and type of the property in question. Appellant was charged with three specifications of larceny and conspiracy to commit larceny. “In the interest of time,” the judge elected not to repeat the elements for each offense during his Care inquiry, but rather established the relationship of fact to law by cross-referencing his predicate statement of elements. As a result, at no point during the Care inquiry regarding Specification 2 did Appellant admit in declaratory fashion that he intended to steal more than $100 in merchandise. Nor did the stipulation of fact specify the value in question. Rather, any such admission must be found in Appellant’s acknowledgement that he understood the elements of Specification 2, which included a value of more than $100, and that his conduct fit the elements of larceny. Although we may have doubts that a similar methodology of cross-reference will work generally, it did not amount to error in this case. Reviewing the Care inquiry in whole, we are satisfied that Appellant understood the elements of conspiracy to commit larceny, understood that the elements included a property valuation of over $100, and affirmatively admitted" }, { "docid": "8415278", "title": "", "text": "military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea.” In order to establish an adequate factual predicate for a guilty plea, the military judge must elicit “factual circumstances as revealed by the accused himself [that] objectively support that plea[.]” United States v. Davenport, 9 MJ 364, 367 (C.M.A.1980). It is not enough to elicit legal conclusions. The military judge must elicit facts to support the pleas of guilty. United States v. Outhier, 45 MJ 326, 331 (1996). The record of trial must reflect not only that the elements of each offense charged have been explained to the accused, but also “make clear the basis for a determination by the military trial judge ... whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.” United States v. Care, 18 USCMA 535, 541, 40 CMR 247, 253 (1969). Upon appellate review, this Court will not overturn a guilty plea unless there is a substantial basis in law and fact for questioning the providence of the plea. United States v. Russell, 50 M.J. 99, 100 (C.A.A.F.1999); United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). We will consider the whole record, including references to a stipulation of fact, to find that a guilty plea inquiry is adequate. See, e.g., United States v. Sweet, 42 M.J. 183 (C.A.A.F.1995). Looking at the entire record in this case, there is no discussion with Appellant as to whether he intended to steal more than $100 in merchandise from the Powerzone on June 21. There is no reference to the value of this merchandise in the stipulated facts. The only basis that can be found is the following statement of the military judge, after he listed the elements of larceny in regard to Charge 1, Specification 1: Okay, Numerous specifications on this charge sheet would normally require me to advise you again and again of the crime— the elements and the definitions associated with that crime." }, { "docid": "7329416", "title": "", "text": "duty. Appellant also explained that the person he expected to call him, SSgt Andrew, had previously authorized his absences. On appeal, Appellant argues that his statements during the providence inquiry regarding the time and place at which he was required to report for duty were inconsistent with his plea to unauthorized absence on or about November 1. The Government responds that Appellant admitted to all the elements of the offense before the military judge, therefore, there is no substantial basis on which to question the plea. DISCUSSION A court shall not accept a plea of guilty where “an accused ... sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently....” Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000). Nor shall a court accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea. Rule for Courts-Martial [hereinafter R.C.M.] 910(e). See United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). A guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991); United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.2002). In this case the record of trial includes the colloquy between Appellant and the military judge and a stipulation of fact, as well as any inferences reasonably drawn from the record. See Care, 18 C.M.A. at 540, 40 C.M.R. at 252. A service member commits the offense of unauthorized absence, Article 86, when it is shown: (a) That the accused absented himself or herself from his or her unit ... at which he or she was required to be; (b) That the absence was without authority from anyone competent to give him or her leave; and (c) That the absence was for a certain period of time. A definitive inception date is indispensable to a successful prosecution for unauthorized absence. United States v. Harris, 21 C.M.A. 590, 593, 45 C.M.R. 364," }, { "docid": "12939575", "title": "", "text": "he wrongfully withheld property from the true owner with the intent to permanently deprive. The court-martial, after due deliberation, found the accused guilty of the larceny of $2.00. We observe at the outset that the specification conforms with the model provided in the Manual for Courts-Martial, United States, 1951, in that it alleged that the accused did “steal” the property in question. Article 121, supra, provides that: “(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind— “(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny. . . .” In United States v Buck; 3 USCMA 341, 12 CMR 97, we had occasion to discuss the application of Article 121 to theft offenses. We there recognized that although the sweep of the Article was vast it was not infinite. Chief Judge Quinn, speaking for a unanimous Court in that case, delineated the scope of statutory larceny when he said: “By enacting Article 121 (a), •supra, Congress eliminated the ofttimes subtle and confusing distinctions previously drawn between common law larceny, embezzlement, and false pretenses. United States v. Al-dridge, 2 USCMA 330, 8 CMR 130, decided March 24, 1953; United States v Norris, 2 USCMA 236, 8 CMR 36, decided February 27, 1953. The consolidation of these crimes, however, did not enlarge the scope of the statutory crime of ‘larceny’ to include more than its components previously encompassed. Since the whole is equal to, not greater than, the sum of all its parts, that which did not constitute common law larceny, embezzlement, or false pretenses, prior to the adoption of Article 121(a), supra, was not thereafter punishable as a violation thereof.” [Emphasis supplied.} In order to prevail, the Government must bring the conduct engaged in by this accused within the" }, { "docid": "8415277", "title": "", "text": "successful completion of this conspiracy to commit larceny, there was no exchange between the military judge and Appellant concerning the value of merchandise that he and his co-conspirators intended to steal from the Powerzone on June 21. Indeed the majority recognizes that “at no point during Appellant’s providence inquiry regarding Specification 2 did Appellant admit in declaratory fashion that he intended to steal more than $100 in merchandise. Nor did the stipulation of fact specify the value in question.” 60 M.J. at 65. In order to find a factual basis that Appellant intended to steal merchandise of a value of more than $100, the majority notes: “[A]ny such admission must be found in Appellant’s acknowledgement that he understood the elements of Specification 2, which included a value of more than $100[.]” 60 M. J. at 65. In United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.2002), this Court set forth a comprehensive overview of the legal requirements in a providence inquiry: To guard against improvident pleas under Article 45, ROM 910(e), Manual, supra, provides: “The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea.” In order to establish an adequate factual predicate for a guilty plea, the military judge must elicit “factual circumstances as revealed by the accused himself [that] objectively support that plea[.]” United States v. Davenport, 9 MJ 364, 367 (C.M.A.1980). It is not enough to elicit legal conclusions. The military judge must elicit facts to support the pleas of guilty. United States v. Outhier, 45 MJ 326, 331 (1996). The record of trial must reflect not only that the elements of each offense charged have been explained to the accused, but also “make clear the basis for a determination by the military trial judge ... whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.” United States v. Care, 18 USCMA 535, 541, 40 CMR 247, 253 (1969). Upon appellate review, this Court will not" }, { "docid": "22230880", "title": "", "text": "a guilty plea is reviewed for an abuse of discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996); see also United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007); United States v. Tippit, 65 M.J. 69, 81 (C.A.A.F.2007); United States v. Thomas, 65 M.J. 132, 134 (C.A.A.F.2007); United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F.2006); United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F.2006); United States v. Erickson, 61 M.J. 230, 232 (C.A.A.F.2005). A military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea — an area in which we afford significant deference. United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002) . Additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion. United States v. Griggs, 61 M.J. 402, 406 (C.A.A.F.2005); United States v. Wardle, 58 M.J. 156, 157 (C.A.A.F. 2003) ; United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.1995). There exist strong arguments in favor of giving broad discretion to military judges in accepting pleas, not least because facts are by definition undeveloped in such cases. See Jordan, 57 M.J. at 238. Indeed, as stated in Jordan, an accused might make a conscious choice to plead guilty in order to “limit the nature of the information that would otherwise be disclosed in an adversarial contest.” Id. at 238-39. As a result, in reviewing a military judge’s acceptance of a plea for an abuse of discretion appellate courts apply a substantial basis test: Does the record as a whole show “ ‘a substantial basis’ in law and fact for questioning the guilty plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). Traditionally, this test is presented in the conjunctive (i.e., law and fact) as in Prater, however, the test is better considered in the disjunctive (i.e., law or fact). That is because it is possible to have a factually supportable plea yet still have a substantial basis in law for questioning it. This might occur where an accused knowingly admits facts that meet all" }, { "docid": "14885236", "title": "", "text": "court-martial. The clear and unequivocal holding of Brinson was that only language “calculated to corrupt morals or excite libidinous thoughts” was obscene. See French, 31 M.J. at 60. As Appellant preferred a guilty plea, the military judge had the duty to apply this precedent, that is, to accurately inform Appellant of the nature of his offense and elicit from him a factual basis to support his plea. See United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). An essential aspect of informing Appellant of the nature of the offense is a correct definition of legal concepts. The judge’s failure to do so may render the plea improvident. See United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F.2003)(holding plea improvident due to erroneous definition of child pornography); United States v. Pretlow, 13 M.J. 85, 88-89 (C.M.A.1982)(holding plea improvident where a military judge failed to define the substantive elements of conspiracy to commit robbery, a complex offense). But such an error in advising an accused does not always render a guilty plea improvident. Where the record contains “factual circumstances” that “objectively support” the guilty plea to a more narrowly construed statute or legal principle, the guilty plea may be accepted. See United States v. James, 55 M.J. 297, 300 (C.A.A.F.2001); United States v. Shearer, 44 M.J. 330, 334 (C.A.A.F.1996). We have stated that in evaluating the provideney of a plea, the entire record should be considered. See United States v. Jordan, 57 M.J. 236, 238-39 (C.A.A.F.2002). To prevail, Appellant has the burden to demonstrate a “substantial basis in law and fact for questioning the guilty plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). In the present case, the provideney inquiry was deficient because the military judge used an erroneous definition of “obscene.” The judge’s definition of obscene is in large part taken from the definition of “indecent” in the Article 134 offense of indecent actions with another. The explanation of this offense states, “ ‘Indecent’ signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends" }, { "docid": "16068879", "title": "", "text": "335, 337 (1972).... [W]e conclude that appellant’s unsworn statement raises no more than the “mere possibility” that he terminated his unauthorized absence on one or more occasions. Faircloth, 45 M.J. at 174. Id. at 4. On appeal to this Court, Appellant argues that his unsworn statement raised matter inconsistent with his plea. According to Appellant, the inconsistency was a defense to the extended period of unauthorized absence, and he analogizes the facts of his case to those of United States v. Reeder, 22 C.M.A. 11, 46 C.M.R. 11 (C.M.A.1972). In response, the Government agrees with Appellant that the military judge erred by failing to resolve the apparent inconsistencies between Appellant’s plea and his unsworn statement. However, the Government’s position is that the error was harmless because any inconsistencies do not create a “substantial basis in law or fact” to question the sufficiency of Appellant’s plea. Finally, the Government argues that, even if this Court were to disagree, we should amend the findings of guilt to reflect multiple unauthorized absences, rather than just one, with no effect on the maximum authorized punishment or the sentence. DISCUSSION “A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996) (citing United States v. Gallegos, 41 M.J. 446 (C.A.A.F.1995)). “Pleas of guilty should not be set aside on appeal unless there is ‘a substantial basis in law and fact for questioning the guilty plea.’ ” Id. (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). “If an accused ‘sets up matter inconsistent with the plea’ at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.1996) (quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000)); see Rule for Courts-Martial (R.C.M.) 910(h)(2). Once a military judge has accepted a plea as provident and has entered findings based on it, this Court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements" } ]

[ { "docid": "2607117", "title": "", "text": "the face of an exclusivity clause do so on the ground that there has been a breach of an independent duty owed by the third party defendant to the third party plaintiff. Thus the employer is not indirectly being made liable to the employee in violation of the strictures of the workmen’s compensation statute. For example, in Blackford v. Sioux City Dressed Pork, Inc., 254 Iowa 845, 118 N.W.2d 559 (1962), the plaintiff, employed by a contractor engaged under a written contract to clean a meat-packer’s plant, sued the meat-packer for injuries sustained while cleaning a pork casing machine. The employer was impleaded by the packer on the allegation that it failed to properly instruct the employee as to safety. The court held that the Iowa workmens’ compensation statute was not a bar to the action because an agreement to perform the cleaning in a safe manner was implied from the contract. Here, there is no particularized obligation running from Kennecott to Dow. In such a context, the division of authority referred to previously largely disappears; the vast majority of courts have concluded that third party suits are precluded by statutory exclusivity provisions. We think the Nevada courts would follow these cases. Nevertheless, Dow strenuously argues that Kennecott does have an independent duty to avoid subjecting Dow to the risk of tort liability. That, however, turns indemnity on its head. Dow’s liability arises because of a breach of a duty it owes to users of its products — in this instance, a worker. Assumably, Kennecott has also breached a duty owed to the same worker by its negligence. Under Dow’s theory, the whole burden of loss would be shifted whenever the employer was negligent in any way because the employer would have failed in its duty to extricate the third party from possible liability. Yet indemnity does not work in that way. In the absence of a specific legal relationship (e. g., master-servant) or contract-type obligation, indemnity is only proper when it is more just to shift the burden of loss — that is, usually when the indemnitor is somehow" } ]

[ { "docid": "18453553", "title": "", "text": "be found in rights and liabilities arising out of some other legal transaction between the two.” Id. at 139. To test whether the indemnity claim is barred, the court must determine whether it is “on account of” the injury, Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 129, 76 S.Ct. 232, 100 L.Ed. 133 (1956). Even if the party seeking indemnity uses contract language, if the obligation has its origin “in the injury itself and the circumstances surrounding it, and the liabilities that it creates and the indemnity obligation itself springs exclusively from the comparison of the relationships of the two parties to the injury,” it is barred. 2A Larson’s, supra, at § 76.10, at 14-293. In sum, this Court is unwilling to adopt an aberrational interpretation of the Massachusetts Act without explicit direction from a Massachusetts court or legislature, particularly when this interpretation appears to run counter to the central thrust of the statute and the analogous trends in the Massachusetts courts. Consistent with majority rule, the Court concludes that the Massachusetts Act grants the employer immunity from indemnity claims based solely on a non-contractual relationship as tortfeasors. However, Third Party Defendant does not receive immunity against express or implied obligations to contract based on an independent contractual relationship. III. The Implied Obligation to Indemnify Because the Court holds that Star Chopper can enforce a contractual claim for indemnity against AMS, the question whether Star Chopper has presented evidence that, as a matter of law, gives rise to an implied contract to indemnify is now before us. The implied obligation to indemnify must rest on a particular duty the employer who has purchased the machine owes to the manufacturer, distinct from the duty he owes to his employees. Beach v. M & N Modern Hydraulic Press Co., 428 F.Supp. 956, 961 (D.Kan.1977). Clearly, the mere fact of a contractual relationship between the would-be indemnitee and indemnitor does not necessarily give rise to an implied obligation to indemnify. For example, courts have refused to regard the vendor/vendee relationship, without more, as giving rise to a contract to" }, { "docid": "4765581", "title": "", "text": "this “special relationship” are said to include duties (1) not to require the production of unsafe products, (2) to share with the manufacturers the extensive knowledge the United States alone possessed regarding occupational exposure to asbestos dust, and (3) to use the manufacturers’ products in the manner for which they were intended and in a reasonably safe and prudent way. (Id. at 27-28.) A similar argument was made by the manufacturers in Drake. The defendants argued that the putative indemnitor owed a duty, independent of that owed its employees, not to use asbestos materials in a way that would make them unreasonably dangerous to the employees or others. Whether the duty was based on tort or contract or on an express or implied contract was not alleged. In dismissing the claim for failure to state a cause of action upon which relief could be granted, the Drake court relied on the language of Judge Friendly in Zapico v Bucyrus-Erie Co., 579 F.2d 714 (2nd Cir.1978). Judge Friendly, summarizing, said the Defendant was asking us to hold a user liable to a manufacturer for the former’s negligent use of the latter’s defective product. This we decline to do. Cf. 2A Larson [Workmen’s Compensation Law], supra, at 402 [ (1976) ] (“But when a purchaser buys a product, does he make an implied contract with the manufacturer to use the goods in such a way as not to bring liability upon the manufacturer? This would be stretching the concept of contract out of all relation to reality”). Id. at 723. In urging that noncontractual indemnity is available in the case at bar, Eagle-Picher is stretching legal concepts beyond their rational borders. To hold the Government liable to Raymark and Eagle-Picher for the Government’s alleged negligent use of these manufacturers’ alleged defective products is a convoluted attempt to reshuffle liability. This attempt carries with it no logic or justice. The “special relationship” underpinning to this argument must fail. This “special relationship” harkens back to the Government contract specifications defense where the manufacturers of asbestos containing products contended, inter alia, that the Government had" }, { "docid": "18453557", "title": "", "text": "1974); Auld v. Globe Indemnity Co., 220 F.Supp. 96 (W.D.La.1963); William H. Field Co., Inc. v. Nuroco Woodwork, Inc., 115 N.H. 632, 348 A.2d 716 (1975). The employer’s duty of proper use and care of the machine runs solely to its employees. Liability for breach of that duty has been satisfied by payment of a compensation award. The employer does not have an independent duty running to the manufacturer to use the machinery so as to avoid imposition of liability upon the manufacturer. The Ninth Circuit viewed the imposition of such a duty as standing “indemnity on its head.” Santisteven v. Dow Chemical Co., 506 F.2d at 1219. In that case, the manufacturer was denied indemnity from the employer for employer’s alleged failure to instruct his employee properly and provide a safe place to work. In Kessler an employee was injured when he kicked a machine to aid its proper functioning. Although the employer had altered the safety bar to permit it to be moved aside, operators had habitually kicked the machine even prior to its alteration. This kicking action was found to be a foreseeable misuse. Thus, the manufacturer was liable but could not reach the employer, as a “co-designer,” since he was immunized by the compensation statute. In fact, New York is the only jurisdiction to allow an indemnity claim against an employer for failure to follow precautions on the label, for use of untrained personnel and for failure to air the premises after use of a fumigant, Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972). But see 2A Larson’s, supra, § 76.44 at 14-405 (critical of this decision; notes lack of authority for it). In light of these courts’ well-founded hesitation to recognize indemnity claims by a manufacturer against an employer/purchaser, this Court approaches Star Chopper’s claim for indemnity with great reservation. Nonetheless, we are persuaded that the evidence produced by Star Chopper, if true, posits a relationship between Star Chopper and AMS sufficiently different from the manufacturer/purchaser relationships involved in the cases discussed ante. The evidence tends to show" }, { "docid": "18453554", "title": "", "text": "Massachusetts Act grants the employer immunity from indemnity claims based solely on a non-contractual relationship as tortfeasors. However, Third Party Defendant does not receive immunity against express or implied obligations to contract based on an independent contractual relationship. III. The Implied Obligation to Indemnify Because the Court holds that Star Chopper can enforce a contractual claim for indemnity against AMS, the question whether Star Chopper has presented evidence that, as a matter of law, gives rise to an implied contract to indemnify is now before us. The implied obligation to indemnify must rest on a particular duty the employer who has purchased the machine owes to the manufacturer, distinct from the duty he owes to his employees. Beach v. M & N Modern Hydraulic Press Co., 428 F.Supp. 956, 961 (D.Kan.1977). Clearly, the mere fact of a contractual relationship between the would-be indemnitee and indemnitor does not necessarily give rise to an implied obligation to indemnify. For example, courts have refused to regard the vendor/vendee relationship, without more, as giving rise to a contract to indemnify. See e. g., Santisteven v. Dow Chemical Co., 506 F.2d 1216 (9th Cir. 1974); Bertone v. Turco Products, Inc., 252 F.2d 726 (3d Cir. 1958); Jennings v. Franz Torwegge Machine Works, 347 F.Supp. 1288 (W.D.Va.1972); McClish v. Niagara Machine & Tool Works, 266 F.Supp. 987 (S.D.Ind.1967); KennedyIngalls Corp. v. Meissner, 16 Wis.2d 145, 113 N.W.2d 562 (1962); Templeton v. BlawKnox Co., 365 N.E.2d 235, 7 Ill.Dec. 950, 49 Ill.App.3d 1057 (1977). These courts are particularly reticent to recognize “downstream indemnity” because it amounts to reversing the strict products liability imposed on a manufacturer for injuries to all users of the product. The situation in which a court is likely to find an implied obligation to indemnify is typified by Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The stevedore/employer had an implied obligation running to the shipowner/indemnitee to stow cargo reasonably safely. That obligation of workmanlike service gave rise to an implied obligation to indemnify. Whether the facts and legal relations of this case warrant" }, { "docid": "18453552", "title": "", "text": "state and federal compensation statutes. The overwhelming majority have held that the employer was immunized against non-contractual indemnity claims but could be held liable based on express or implied contracts to indemnify the third party. 2A Larson’s Workmen’s Compensation § 76.44, n. 81 (1976) (cases cited therein). The standard reasoning of the majority starts with the assumption that any liability of the employer for the injury of the employee is exclusively satisfied by a compensation award. The non-contractual indemnity claim arises solely from this discharged liability; the contractual indemnity claim exists independent of a duty owed to the employee. In Slattery v. Marra Bros., 186 F.2d 134 (2d Cir. 1951), Judge Learned Hand recognized that general indemnity law permits the transfer of liability to the party primarily at fault only “upon the assumption that both parties are liable to the same person for the joint wrong.” However, “when one of the two is not so liable” as when he has discharged his liability under a compensation act, “the right of the other to indemnity must be found in rights and liabilities arising out of some other legal transaction between the two.” Id. at 139. To test whether the indemnity claim is barred, the court must determine whether it is “on account of” the injury, Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 129, 76 S.Ct. 232, 100 L.Ed. 133 (1956). Even if the party seeking indemnity uses contract language, if the obligation has its origin “in the injury itself and the circumstances surrounding it, and the liabilities that it creates and the indemnity obligation itself springs exclusively from the comparison of the relationships of the two parties to the injury,” it is barred. 2A Larson’s, supra, at § 76.10, at 14-293. In sum, this Court is unwilling to adopt an aberrational interpretation of the Massachusetts Act without explicit direction from a Massachusetts court or legislature, particularly when this interpretation appears to run counter to the central thrust of the statute and the analogous trends in the Massachusetts courts. Consistent with majority rule, the Court concludes that the" }, { "docid": "17993412", "title": "", "text": "respect to the third-party claims based upon Electric Boat’s alleged simple and active negligence. B. Contract-based indemnity claims In order to succeed on these third-party claims, therefore, the third-party plaintiffs must establish either an express or implied contractual right to indemnification from Electric Boat. There are no allegations that any express agreements to indemnify have been made by Electric Boat, nor is there any contention that further discovery will uncover such express agreements. The only issue remaining before the court, then, is whether Electric Boat, as a purchaser of goods sold by the third-party plaintiffs, impliedly agreed to indemnify them for the amount of any recovery by plaintiff. If such an implied contractual obligation exists, it must arise either by operation of law or by the affirmative conduct of the parties. First, it is clear that no such implicit obligation arises as a matter of law. It is well accepted that a purchaser of a product undertakes no implicit obligation to reimburse the manufacturer or supplier thereof, who itself is found to have breached a duty to the plaintiff, for any losses caused by the purchaser’s negligent use of the manufacturer’s or supplier’s product. See, e.g., Dulin v. Circle F Industries, Inc., 558 F.2d 456, 464 (8th Cir. 1977); Santisteven v. Dow Chemical Co., 506 F.2d at 1219-20; Oman v. Johns-Manville Corp., 482 F.Supp. at 1063. For example, in Dulin v. Circle F Industries, Inc., the court stated: We do not accept [the manufacturer’s] argument that a user of an article supplied by another owes to the latter any duty of care in connection with the use of the article so as to impose upon the former any duty to indemnify the supplier with respect to liability imposed upon him for damages resulting from a misuse of the product, at least where the supplier himself has been guilty of negligence. In the field of products liability the chain of indemnity ordinarily runs down the chain of distribution and not in the reverse direction. 558 F.2d at 464. The case of Santisteven v. Dow Chemical Co. presents factual circumstances very close" }, { "docid": "4095915", "title": "", "text": "§§ 901 et seq., and therefore does not benefit from the immunity provided for under § 905(b). § 905(a) merely restates the law as it was prior to the 1972 amendments to the Act. That subsection bars recovery from an employer by the injured employee or the legal representative of a deceased employee and anyone else “entitled to recover damages from such employer ... on account of such injury or death” of the employee. Id. (emphasis supplied). Here, Bueyrus-Erie did not seek damages from ACL “on account of” Zapico’s death and Millan’s injury. Rather, it sought partial indemnification either as a third-party beneficiary of the stevedoring contract between ACL and the vessel or on a quasi-contractual theory, based on an alleged breach of an independent duty owed to it by ACL. Both theories essentially rely on the stevedore’s implied warranty of workmanlike performance, given by the stevedore to the vessel, which was charac terized by the Ryan Court as “comparable to a manufacturer’s warranty of the soundness of its manufactured product,” 350 U.S. at 133-34, 76 S.Ct. at 237, and which in this case was found by the jury to have been breached when ACL wrongfully supplied unqualified personnel, including Antonio Fuet, the driver of the truck-crane. Just as the manufacturer’s implied warranty has been extended in numerous jurisdictions to all foreseeable users of the manufacturer’s product, so has the strict privity of contract requirement to benefit from the stevedore’s implied warranty of workmanlike performance been abrogated. E. g., Waterman Co. v. Dugan & McNamara, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). And, indemnification based on a quasi-contractual theory has been recognized, in a statutory framework on which the Longshoremen’s and Harbor Workers’ Compensation Act was based. See Westchester Lighting Co. v. Westches-ter County, 278 N.Y. 175, 15 N.E.2d 567 (1938); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972). Extending third-party benefits of the stevedoring contract to the consignor of goods when the consignor" }, { "docid": "18453558", "title": "", "text": "its alteration. This kicking action was found to be a foreseeable misuse. Thus, the manufacturer was liable but could not reach the employer, as a “co-designer,” since he was immunized by the compensation statute. In fact, New York is the only jurisdiction to allow an indemnity claim against an employer for failure to follow precautions on the label, for use of untrained personnel and for failure to air the premises after use of a fumigant, Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972). But see 2A Larson’s, supra, § 76.44 at 14-405 (critical of this decision; notes lack of authority for it). In light of these courts’ well-founded hesitation to recognize indemnity claims by a manufacturer against an employer/purchaser, this Court approaches Star Chopper’s claim for indemnity with great reservation. Nonetheless, we are persuaded that the evidence produced by Star Chopper, if true, posits a relationship between Star Chopper and AMS sufficiently different from the manufacturer/purchaser relationships involved in the cases discussed ante. The evidence tends to show a relationship more in the nature of co-manufacturers. The evidence in this case, if believed, provides the basis for finding an implied contract to indemnify. We recognize the potential our decision has for undermining the policies of both strict liability and workmen’s compensation. Therefore, our holding on this issue is narrowly confined to the unusual allegations and evidence before us. Essentially three allegations distinguish the relationship of the parties from a typical manufacturer/purchaser relationship and together suggest an implied contract to indemnify. First, Star Chopper contends that AMS was exclusively responsible for the design of the take-up machine that injured Plaintiff Roy. Star Chopper, principally through the testimony of its owner, Mr. George LeToile, argues that it simply followed the detailed, complete designs imposed by its customer, AMS. These drawings, all conceded, omit safety devices. Second, Mr. LeToile testified that he inquired into adding safety devices. His testimony, corroborated by Star Chopper’s expert, was that to add effective safety devices, knowledge of the exact angle at which the metal strips enter the rollers was essential." }, { "docid": "4765596", "title": "", "text": "indemnification by the Government was necessary: It is well established that a vendor/vendee relationship creates no implied agreement by the buyer to indemnify the seller for injuries resulting from the use of the purchased product. In re General Dynamics Asbestos Products 539 F.Supp. 1106,1110-12 (D.Conn.1982); Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 723 (2d Cir.1978); White v. Johns-Manville Corp., 662 F.2d 243, 248 (4th Cir.1981). Id. at 981. Other courts have drawn similar conclusions concerning the asserted, implied “reverse warranty.” In White v. Johns-Manville Corp., 662 F.2d 243 (4th Cir.1981), the Court said: This “reverse warranty” theory distorts the concepts of implied warranty “out of all relation to reality.” 2A A. Larson, the Law of Workmen’s Compensation § 76.44 at 14-402. There is no express warranty here, and no such warranty arises under the Virginia sales statute, see Va.Code §§ 8.2-314, 315, or simply from a vendor/vendee relationship. Jennings v. Franz Torwegge Machine Works, 347 F.Supp. 1288, 1289 (W.D.Va.1972), see Santisteven v. Dow Chemical Co., 506 F.2d 1216, 1219 (9th Cir.1974) (manufacturer’s argument that purchas er has independent duty to avoid subjecting manufacturer to the risk of tort liability “turns indemnity on its head.”). Id. at 248. Accord, Colombo v. Johns-Manville Corp., 601 F.Supp. 1119, 1139-40 (E.D.Pa.1984). Also, the quoted statement of Judge Friendly in Zapico applies with equal vigor here. (See p. 156, supra.) Consequently, whether analyzed as barred by the Antideficiency Act or as not being a claim actionable under the Tucker Act, the manufacturers’ contractually based claims are dismissed for failure to state claims for which relief can be granted. CONCLUSION Based on the foregoing discussion, all third-party claims are dismissed for failure to state claims on which relief can be granted. This result is not only consistent with precedent and traditional application of contract principles, but policy considerations underlying the relevant statutory provisions are also well served. . The purposes for this requirement of reimbursement are (1) to prevent an employee from recovering twice for the same injury and (2) to keep the fund solvent and to minimize the cost of the program. Lorenzetti v. United" }, { "docid": "23497866", "title": "", "text": "n. 2, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975); Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 57 S.Ct. 325, 81 L.Ed. 593 (1937). We do not pretend to complete satisfaction with the result we have been compelled to reach. Bucyrus will now be obliged to pay the entire damages although the jury found it only 50% responsible and the employer will recover part or, more likely, all of his compensation payments despite his own 50% responsibility. A court may well feel tempted to cut the Gordian knot and simply apportion liability according to fault on a contribution-like theory, as the New York Court of Appeals did in Dole v. Dow Chemical Co., supra, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, despite a section of that state’s compensation law almost identical to § 905(a) of the LHWCA. See Rock v. Reed-Prentice, supra, 39 N.Y.2d 34, 382 N.Y.S.2d 720, 346 N.E.2d 520 (1976). The district judge was actuated by considerations of this sort. But Halcyon v. Haenn prevents us from following Dole, we cannot adopt the district court’s expanded notion of indemnity, and Bucyrus’ failure to cross-appeal precludes us from considering any proposals that would reduce the amount of plaintiffs’ judgments even if we were otherwise persuaded to do so. The judgment is reversed with instructions to dismiss the third-party complaint. . Although it is occasionally said that an “active” tortfeasor incurs an implied obligation to reimburse a “passive” tortfeasor, “the origin of the action is in the injury itself and the circumstances surrounding it, and the liabilities that it creates and the indemnity obligation itself spring exclusively from the comparison of the relationships of the two parties to that injury.” 2A Larson, supra, at 293. See Leflar, supra, 81 U.Pa.L.Rev. at 146-47. . In reply it might be said that Congress had not clearly manifested an intention to cut off suits for indemnity by third parties against employers; after all, it was only the employee who received a quid pro quo (compensation payments without the need to prove fault) as a substitute for tort recovery, while" }, { "docid": "18075342", "title": "", "text": "omitted). See also Bogatzki v. Hoffman, 430 N.W.2d 841, 843 (Minn.Ct.App.1988) (indemnification; scope of release in dispute). Under these circumstances, “there is no point in going through the circuity of ordering a judgment” against the nonset-tling defendant only to have the plaintiff ultimately satisfy the judgment itself. See Fleming v. Threshermen’s Mutual Insurance Co., 388 N.W.2d at 911 (nonsettling defendant is liable to plaintiff, but also entitled to indemnity from the settling defendant, who, in turn, the plaintiff agreed to indemnify in Pierringer release), citing Pierringer v. Hoger, 124 N.W.2d at 112; see generally Simonett, 3 Wm. Mitchell L.Rev. at 24 (plaintiff bars itself from collecting any money from a nonsettling defendant who successfully establishes a right to indemnity against a settling defendant). Moreover, the application of Pierringer principles to cross-claims for indemnification is consistent with the “comparative indemnity” adopted by the Minnesota Supreme Court in Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362, 367-68 (Minn.1977). Accord Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); Pachowitz v. Milwaukee & Suburban Transport Corp., 56 Wis.2d 383, 202 N.W.2d 268 (1972); see generally Simonett, 3 Wm. Mitchell L.Rev. at 25. In Tolbert v. Gerber Industries, Inc., the court reviewed its prior decisions concerning indemnity between joint tort-feasors and identified five indemnity situations: (1) derivative or vicarious liability, (2) liability due to justifiable reliance upon another, (3) liability due to breach of duty owed by another, (4) liability due to failure to discover or prevent the misconduct of another, and (5) contractual liability. 255 N.W.2d at 366, citing Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 372, 104 N.W.2d 843, 848 (1960). The court distinguished contractual indemnity cases and then noted that, in the first three situations, the party seeking indemnity is without personal fault but nevertheless is liable, and indemnity shifts the liability to the wrongdoer. 255 N.W.2d at 366. The court contrasted those situations with the fourth situation in which the party seeking indemnity is at fault but nonetheless seeks indemnification from another wrongdoer to avoid responsibility for the damage it has" }, { "docid": "1416081", "title": "", "text": "supports the policy of securities legislation, indemnification tends to frustrate and defeat it. A securities wrongdoer should not be permitted to escape loss by shifting his entire responsibility to another party. If indemnification were allowed, those found liable for the breach of a statutory obligation might escape liability as effectively as if contribution were denied.” Appellants also seek indemnity from appellees on two common law counts of plaintiffs’ first amended complaint: Count IV, which alleges that the Bank is liable for having negligently failed to investigate Doug Frank and Western, or to discover the misappropriation, mismanagement, and fraud perpetrated on Western by Doug Frank, its officers and directors; and Count V, which alleges that the defendants’ conduct “constitutes a breach of the common law principles of trust and fiduciary duty.” The parties do not dispute that state law governs the common law counts pendent to the federal securities claims. They cannot agree, nor has the trial court reached the issue, as to what local law applies. This is a determination we plainly cannot make on the limited record before us. Furthermore, even if we were to determine which state law applies (the parties suggest it is Arizona or New York law), there are unresolved factual issues as to the relationship between the parties which must be decided before an entitlement to indemnity can be established under the law of either of these states. See Busy Bee Buffet v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972). . We conclude that dismissal of the pendent state claims was error in so far as it applies to Frank and Folb. As to the five officer and director appellees other than Frank and Folb, this portion of the summary judgment is affirmed, since at the very least a party cannot be held liable for indemnity if it is adjudicated not liable for any wrongdoing. See generally Busy Bee Buffet v. Ferrell, supra; Margolin v. New York Life Insurance Co., 32 N.Y.2d 149, 297 N.E.2d 80, 344 N.Y.S.2d 336" }, { "docid": "17993411", "title": "", "text": "(5th Cir. 1975), cert. denied sub nom. Bettis Corp. v. Charles Wheatley Co., 423 U.S. 1049, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976) (LHWCA); Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 315 (D.Maine 1981) (LHWCA); Oman v. Johns-Manville Corp., 482 F.Supp. 1060, 1072-73 (E.D.Va.1980), aff’d. sub nom. White v. Johns-Manville Corp., 662 F.2d 243 (4th Cir. 1981) (LHWCA). Only where there exists an independent contractual relationship which creates an independent duty on the part of the employer to indemnify the third-party plaintiff can the exclusive liability provision of the LHWCA be overcome. Zapico v. Bucyrus-Erie Co., 579 F.2d at 722; Santisteven v. Dow Chemical Co., 506 F.2d 1216, 1218-19 (9th Cir. 1974); Ocean Drilling & Exploration Co. v. Berry Brothers Oilfield Service, Inc., 377 F.2d 511, 512 (5th Cir.), cert. denied, 389 U.S. 849, 88 S.Ct. 102, 19 L.Ed.2d 118 (1967). Since the exclusive liability provision of the LHWCA precludes the right to recover over against the employer on a tort-based theory, Electric Boat is entitled to judgment as a matter of law with respect to the third-party claims based upon Electric Boat’s alleged simple and active negligence. B. Contract-based indemnity claims In order to succeed on these third-party claims, therefore, the third-party plaintiffs must establish either an express or implied contractual right to indemnification from Electric Boat. There are no allegations that any express agreements to indemnify have been made by Electric Boat, nor is there any contention that further discovery will uncover such express agreements. The only issue remaining before the court, then, is whether Electric Boat, as a purchaser of goods sold by the third-party plaintiffs, impliedly agreed to indemnify them for the amount of any recovery by plaintiff. If such an implied contractual obligation exists, it must arise either by operation of law or by the affirmative conduct of the parties. First, it is clear that no such implicit obligation arises as a matter of law. It is well accepted that a purchaser of a product undertakes no implicit obligation to reimburse the manufacturer or supplier thereof, who itself is found to have breached a" }, { "docid": "4095916", "title": "", "text": "76 S.Ct. at 237, and which in this case was found by the jury to have been breached when ACL wrongfully supplied unqualified personnel, including Antonio Fuet, the driver of the truck-crane. Just as the manufacturer’s implied warranty has been extended in numerous jurisdictions to all foreseeable users of the manufacturer’s product, so has the strict privity of contract requirement to benefit from the stevedore’s implied warranty of workmanlike performance been abrogated. E. g., Waterman Co. v. Dugan & McNamara, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). And, indemnification based on a quasi-contractual theory has been recognized, in a statutory framework on which the Longshoremen’s and Harbor Workers’ Compensation Act was based. See Westchester Lighting Co. v. Westches-ter County, 278 N.Y. 175, 15 N.E.2d 567 (1938); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972). Extending third-party benefits of the stevedoring contract to the consignor of goods when the consignor is a manufacturer, or providing apportionment of damages based on proportion of fault when it is the stevedore’s negligence that brought the manufacturer’s negligence or breach of implied warranty into play, would violate no statutory or judicially recognized immunity or principle, and would only be equitable in the traditions of the maritime law. This is particularly so since such manufacturers have no control over who performs later stevedoring functions and are increasingly being subjected to strict liability in tort. Accordingly, ACL’s motion for entry of judgment in its favor, on the ground that it furnished its employees with the benefits required by the Act and is therefore not subject to contribution or indemnity, is denied. A judgment shall therefore be submitted in conformity with the jury’s verdict on reasonable notice. So Ordered. . Defendant, third-party plaintiff Bucyrus-Erie Co.’s motion to amend its pleadings insofar as necessary to “conform [them] to the evidence” adduced at trial is granted. Fed.R.Civ.P. 15(b). Plaintiff Celia Zapico’s motion to strike the jury’s finding of 25% contributory negligence on the part" }, { "docid": "7803625", "title": "", "text": "News therefore owed the manufacturers an implied obligation or warranty to exercise due care to protect its employees from harm. In breaching this duty Newport News thereby became obligated to indemnify the manufacturer for any liability they might have to Newport News’ employees. Applying Virginia common and statutory law, the district court properly found this claim to be without merit. This “reverse warranty” theory distorts the concept of implied warranty “out of all relation to reality.” 2A A. Larson, The Law of Workmen’s Compensation § 76.44, at 14-402. There is no express warranty here, and no such warranty arises under the Virginia sales statute, see Va.Code §§ 8.2-314, -315, or simply from a vendor-vendee relationship. Jennings v. Franz Torwegge Machine Works, 347 F.Supp. 1288, 1289 (W.D.Va. 1972), see Santisteven v. Dow Chemical Co., 506 F.2d 1216, 1219 (9th Cir. 1974) (manufacturer’s argument that purchaser had independent duty to avoid subjecting manufacturer to the risk of tort liability “turns indemnity on its head”). Further, the manufacturers do not allege facts showing that there was any unique relationship with Newport News that could support such a claim. See Roy v. Star Chopper Co., 442 F.Supp. 1010, 1020-22 (D.R.I.1977), aff’d, 584 F.2d 1124 (1st Cir. 1978) (relationship more in the nature of co-manufacturers). The district court’s disposition of this claim was therefore correct. IV Turning to the noncontractual claim for indemnity, we have first to deal with Newport News’ contention — accepted by the district court — that the claim was barred as a matter of law by the exclusivity provision of the LHWCA, 33 U.S.C. § 905. That section provides in pertinent part: § 905. Exclusiveness of liability (a) The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death .... On appeal the manufacturers contend that application of this provision to" }, { "docid": "9614894", "title": "", "text": "our conclusion that the statute of frauds is not a bar to enforcement of an express contract between FWSS and Martin. A respected commentator has stated: When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee be cause of the operation of the exclusive remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation. 2A A. Larsen, Workmen’s Compensation § 76.00. Consistent with the distinction expressed by Larsen, courts have recognized the right of a third party to be indemnified by an employer subject to a workmen’s compensation act if the third party and employer were bound by an express contract of indemnification. Roy v. Star Chopper Co., 584 F.2d 1124 (1st Cir.1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979) (Massachusetts law would recognize right to indemnity if express or implied contractual relationship existed); Hysell v. Iowa Public Service Co., 534 F.2d 775 (8th Cir.1976) (right to indemnification under Iowa law if obligation arises out of separate duty of employer); Gordon H. Ball, Inc. v. Oregon Erecting Co., 273 Or. 179, 539 P.2d 1059 (Or.1974) (en banc) (right to indemnification if obligation arises out of independent duty of employer); Montoya v. Greenway Aluminum Co., 10 Wash.App. 630, 519 P.2d 22 (1974) (right to indemnification only if express contract); Dale v. Whiteman, 388 Mich. 698, 202 N.W.2d 797 (1972) (right to indemnification if express or implied contract); see also A. Larsen, supra, §§ 76.40-76.42. Nothing in the rationale of the Workmen’s Compensation Act precludes an employer from voluntarily waiving the immunity provided by that Act. If the allegations of the Beck and FWSS claims’ against Martin are true, such an" }, { "docid": "7803624", "title": "", "text": "indemnity claim are derived are maritime tort claims to be adjudicated under federal admiralty jurisdiction. White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir. 1981). A noncontractual indemnity claim arising therefrom is similarly a maritime claim, see Tri-State Oil Tools Industries, Inc. v. Delta Marine Drilling Co., 410 F.2d 178, 186 (5th Cir. 1969), to be assessed under principles of maritime law. We now address each of these claims under the principles applicable to its resolution. Ill The manufacturers’ contractual claim for indemnity is alleged by them to arise from an implied warranty running back to them from the purchasers of their products. They argue that the injuries alleged by the employees resulted from hazardous occupational exposure to and unsafe use of their products. Because of the purchaser/employer’s control over the workplace and direct access to employees, they assert that as manufacturers they had to exercise through Newport News any duty they might have owed the employees and were entitled to rely on Newport News to exercise care in protecting its employees from harm. Newport News therefore owed the manufacturers an implied obligation or warranty to exercise due care to protect its employees from harm. In breaching this duty Newport News thereby became obligated to indemnify the manufacturer for any liability they might have to Newport News’ employees. Applying Virginia common and statutory law, the district court properly found this claim to be without merit. This “reverse warranty” theory distorts the concept of implied warranty “out of all relation to reality.” 2A A. Larson, The Law of Workmen’s Compensation § 76.44, at 14-402. There is no express warranty here, and no such warranty arises under the Virginia sales statute, see Va.Code §§ 8.2-314, -315, or simply from a vendor-vendee relationship. Jennings v. Franz Torwegge Machine Works, 347 F.Supp. 1288, 1289 (W.D.Va. 1972), see Santisteven v. Dow Chemical Co., 506 F.2d 1216, 1219 (9th Cir. 1974) (manufacturer’s argument that purchaser had independent duty to avoid subjecting manufacturer to the risk of tort liability “turns indemnity on its head”). Further, the manufacturers do not allege facts showing that there was any unique" }, { "docid": "22836099", "title": "", "text": "binding instructions was the equivalent of a motion for a directed verdict and as such provided the procedural predicate for the Rule 50(b) judgment. Because we have determined that the judgment entered against Levin and S. Klein must be vacated on other grounds, we need not and do not here decide the issue. Upon retrial, the district court may request the parties to consider whether the New Jersey Supreme Court would be receptive to a rule kindred to the apportionment rule announced by the New York Court of Appeals in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) that “where a third party is found to have been responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the third party. To reach that end there must necessarily be an apportionment of responsibility in negligence between those parties. The adjudication is one of fact and may be sought in a separate action . . . or as a separate and distinguishable issue by bringing in the third party in the prime action.” See Leflar, Contribution and Indemnity Between Tortfeasors, 80 U.Pa.L.Rev. 130 (1932). The Dole decision itself involved a defendant-third party relationship, but the apportionment principle was subsequently applied to cross claims among co-defendants in Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 (1972). Dole implicated active and passive negligence, and abolished the distinction. It did not implicate a combination of negligence and products liability; and it did not implicate the troublesome — and in our view sui generis — concept of second collision liability. Dole did not affect the plaintiff’s rights at all; it only provided for an apportionment of responsibility among defendants. But it did represent a salutary judicial reevaluation of a tired common law doctrine that had long since outlived its purposes. The common law must accommodate changing conditions, new rights and remedies. New theories of liability, like the second collision theory, require" }, { "docid": "1214399", "title": "", "text": "be void. . 33 U.S.C. § 905 (emphasis added). Since no party seeking indemnity here is a vessel owner, the explicit Congressional instructions provided in subsection (b) are not applicable, and this case must be resolved under the more general language of subsection (a). A. The nature of the indemnity that may be sought under § 905(a) 1. Contract The Fifth Circuit has plainly stated that “the employer may continue, even in spite of the exclusive liability provision of the Act, to remain liable for indemnity on the basis of an express or implied contractual obligation.” ODECO v. Berry Bros. Oilfield Service, supra, 377 F.2d at 514-515. Section 905(a) of the Act does not bar such recovery because a claim for indemnity based upon such an obligation is not, in the words of that section, “on account of” the employee’s injury or death. Rather, it is grounded upon an independent obligation that exists directly between the indemnitor and the indemnitee. See Larson, Workmen’s Compensation Law § 76.30 (1974). This was the concept relied upon by the Supreme Court when it allowed indemnity to a shipowner based upon the stevedore’s breach of its implied warranty of workmanlike performance in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 126, 129-30, 76 S.Ct. 232, 235, 100 L.Ed. 133 (1956). Although the 1972 Amendments to the LHWCA specifically bar recovery of Ryan indemnity, the Court’s approach to the exclusivity provision of the LHWCA is still instructive. In General Electric Co. v. Cuban American Nickel Co., 396 F.2d 89 (5th Cir. 1968), Judge Wisdom followed this approach and traced its origin to the New York case of Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567. Judge Wisdom quoted the New York judge’s succinct statement of the concept: “Plaintiff does not sue for damages ‘on account of’ Haviland’s death. Plaintiff asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the defendant.” 396 F.2d at 91, quoting 15 N.E.2d at 568. 2. Tort When one considers the possibility of" }, { "docid": "8692116", "title": "", "text": "than contributory negligence, Steamer Max Morris v. Curry, 137 U.S. 1, 14-15, 11 S.Ct. 29, 32-33, 34 L.Ed. 586 (1890), and, especially but not exclusively in collision cases, contribution rather than no contribution among joint tortfeasors. See United States v. Reliable Transfer Co., 421 U.S. 397, 401 n. 3, 95 S.Ct. 1708, 1710 n. 3, 44 L.Ed.2d 251 (1975); Cooper Stevedoring Co. v. Kopke, 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974); Adams v. Texaco, Inc., 640 F.2d 618, 621 (5th Cir. 1981). There is tension between contribution and indemnity. It is illustrated by Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972), where the adoption of contribution in nonmaritime tort cases led New York’s highest court to reject indemnity in favor of contribution in a case where under traditional principles indemnity would have been allowed, and to quote approvingly a commentator’s description of the active-passive distinction as one of the “artificial distinctions” that had “evolved in the unnatural surroundings of an inflexible rule against contribution.” 30 N.Y.S.2d at 150, 331 N.Y.S.2d at 387, 282 N.E.2d at 293. The question whether there is ever pure tort indemnity in maritime cases was an open one in the Supreme Court even before Cooper Stevedoring Co. v. Kopke, supra, made clear that contribution is the general rule in noncollision as well as collision cases. The Court had expressly reserved the question of tort indemnity in the implied warranty cases. See Ryan, 350 U.S. at 133, 76 S.Ct. at 237; Federal Marine Terminals, 394 U.S. at 420-21, 89 S.Ct. at 1153; see also Weyerhaeuser, 372 U.S. at 603, 83 S.Ct. at 930. On the other hand, if admiralty law really were hostile to the all-or-nothing approach characteristic of indemnity, the Supreme Court probably would not have invented the stevedore’s implied warranty. That warranty, under the regime of Sieracki, allowed indemnity despite the absence of a contract to indemnify, and did so for the same reason that the common law requires the active joint tortfeasor to indemnify the passive one: “liability should fall upon the party best" } ]

[ { "docid": "17899350", "title": "", "text": "our decision in Northern Pipeline is prospective only, id., at -, 102 S.Ct. 288[o] [sic], and because we have stayed the issuance of our mandate in that case to December 24, 1982, - U.S. -, 103 S.Ct. [199] [sic], 74 L.Ed.2d 160, that decision does not affect the judgment in this case. - U.S. at -, 103 S.Ct. at 410, note 5. Accordingly, the bankruptcy court decision in the case at bar, as resulting from § 1471 jurisdiction, entered on September 22,1981, is to be afforded de facto bankruptcy jurisdictional validity upon appellate review. The pertinent substantive inquiry on appeal is the constitutionality of Tennessee’s opt-out statute, T.C.A. § 26-2-112. The Bankruptcy Reform Act of 1978, 11 U.S.C. § 101 et seq., created an express enumeration of exemptions from the bankruptcy estate. 11 U.S.C. § 522(d). Included within this federal exemption scheme is the following “homestead” exemption: (1) The debtor’s aggregate interest, not to exceed $7,500 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor, (emphasis added) 11 U.S.C. § 522(d)(1). Congress, however, further vested in the states the authority to “opt out” of the federal exemption scheme: 11 U.S.C. § 522(b)(1) (emphasis added). Tennessee, and a significant number of other states, have rejected or opted-out of the federal exemption scheme embodied in 11 U.S.C. § 522(d): (b) Notwithstanding section 541 [which defines property of the estate] of this title, an individual debtor may exempt from property of the estate either— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debt- or under paragraph (2)(A) of this subsection specifically does not so authorize. § 26-2-112. Exemptions for the purpose of bankruptcy The personal property exemptions as provided for in this part, and the other exemptions as provided in other sections of the Tennessee Code" } ]

[ { "docid": "18880768", "title": "", "text": "Bankruptcy Court’s “Amended Memorandum Opinion” of November 6, 1989 is hereby quashed. It is further ORDERED that Mo.Rev.Stat. § 513.427 and Mo.Rev.Stat. § 513.430(10)(e) are preempted by ERISA for the reasons set out above. It is further ORDERED that appellants’ remaining arguments are either rejected or deemed moot for the reasons set out in the body of this order. It is further ORDERED that this matter is remanded to the Bankruptcy Court for action consistent with this opinion. . 11 U.S.C. § 522(b) reads, in pertinent part, as follows: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection.... Such property is— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place; and (B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law. . H.R.Rep. No. 595, 95th Cong., 1st Sess. 360 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6316 (citations omitted). . In re Daniel, 771 F.2d 1352 (9th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986); Lichstrahl v. Bankers Trust (In re Lichstrahl), 750 F.2d 1488 (11th Cir.1985); Goff v. Taylor (In re Goff), 706 F.2d 574 (5th Cir.1983). ." }, { "docid": "1257369", "title": "", "text": "§ 522 does not “federalize” the Arizona state exemption law. The bankruptcy court also denied the debtors’ alternative cross motions for summary judgment contending that the non-ERISA disability portion of the plan was exempted, finding that there are genuine issues of material fact as to this issue. Partial summary judgment was entered for the Trustees on January 4, 1989. Both debtors then appealed from the partial summary judgment order, and this Court granted a joint motion of the parties to consolidate the appeals. The parties agree that the two appeals are identical. Accord ingly, for convenience, this order will discuss the issues with reference to the Siegel appeal, although the findings and conclusions apply equally to both cases. DISCUSSION Standard of Review The District Court reviews decisions of the bankruptcy court as an appellate court. 28 U.S.C. § 158. Findings of fact are reviewed under the clearly erroneous standard and findings of law are reviewed de novo. In re Daniels-Head and Associates, 819 F.2d 914 (9th Cir.1987). There are no disputed facts for purposes of these appeals. Debtors’ Claims for Exemption As asserted in the bankruptcy court, appellants contend that their interests in the qualified employee benefit plans are exempt pursuant to 11 U.S.C. § 522 and A.R.S. § 33-1126(B). Title 11, United States Code, section 522 provides exemptions for certain property of the bankruptcy estate. Subsection 522(b) provides: [A]n individual debtor may exempt from property of the estate ... either ... (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of filing of the petition.... The parties agree that these provisions provide debtors a choice between the federal “laundry list” of exemptions in subsection 522(d), or the applicable State law exemptions, unless the State specifically “opts out” of the federal exemptions in subsection (d), pursuant" }, { "docid": "3455930", "title": "", "text": "part on the Sixth Circuit Court of Appeals’ decision in Rhodes v. Stewart, 705 F.2d 159 (6th Cir.1983), wherein the court upheld the validity -of the Tennessee “opt-out” statute which restricts Tennessee citizens to state exemptions in bankruptcy cases. Judge Bare observed that in Rhodes, the Sixth Circuit cited with approval the Fourth Circuit Court of Appeals’ holding in Zimmerman v. Morgan, 689 F.2d 471 (4th Cir.1982), that “§ 522(b)(1) affords each state the option to restrict its residents to the exemptions permitted by the laws of the particular states and that the residents of those states which have exercised the option to opt-out are not only restricted to state exemptions ‘but must moreover comply with the state mechanisms for claiming those exemptions.’” In re Norton, 30 B.R. at 715 (quoting Rhodes, 705 F.2d at 164). In the present case, Hartley argues that the facts herein are “on all fours” with In re Norton, which Hartley characterizes as “the law in the Eastern District of Tennessee.” The debtor on the other hand, asks this court to adopt the holding in In re Smith, 119 B.R. 757 (Bankr.E.D.Cal.1990). In Smith, a creditor filed a notice of lien in a debtors’ pending personal injury cause of action after the creditor obtained a judgment against the debtors. Id. at 759. Under California law, when a lien is created on a cause of action, the judgment debtor bears the burden of claiming an exemption in the cause of action not later than thirty days after he or she receives notice of the creation of the lien. The failure of the judgment debtor to comply with this time requirement in the words of the statute “constitutes a waiver of the exemption.” Id. (quoting Cal. C. Civ. Proc. § 708.450(a)). The judgment debtors in Smith never responded to the notice of hen. Instead, almost a year later, they filed for chapter 7 relief and asserted in their schedule of exemptions an exemption in the cause of action. The debtors also filed a motion to avoid the creditor’s judicial lien under § 522(f)(1) of the Bankruptcy Code." }, { "docid": "17899346", "title": "", "text": "KRUPANSKY, Circuit Judge. This is a direct appeal, pursuant to 28 U.S.C. § 1293(b), from a judgment of the Bankruptcy Court for the Middle District of Tennessee declaring “invalid” Tennessee’s “opt-out” statute, T.C.A. § 26-2-112. Rhodes v. Stewart, 14 B.R. 629 (Bkrtcy.M.D.Tenn.1981). Confronting the polestar issue of the jurisdiction of a bankruptcy court to exercise the judicial power of an Article III court, it is initially noted that Section 241(a) of the Bankruptcy Reform Act of 1978 (Act), Pub.L. No. 95-598, 28 U.S.C. § 1471, which grants to bankruptcy courts jurisdiction over all “civil proceedings arising under title 11 or arising in or related to cases under title 11”, was adjudged “unconstitutional” by Justices Brennan, Marshall, Blackmun and Stevens in Northern Pipeline Construction Company v. Marathon Pipe Line Company, —- U.S. -, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Although in Northern the Court was confronted with the bankruptcy court’s jurisdiction to entertain only one type of civil proceeding “arising in or related to” a bankruptcy case, to wit, a breach of contract and warranty complaint predicated upon state law, the permissible and impermissible exercises of jurisdiction under § 1471 were deemed nonsev-erable and the broad jurisdictional grant of § 1471 was declared unconstitutional in its entirety. Justice Brennan stated: [W]e cannot conclude that if Congress were aware that the grant of jurisdiction could not constitutionally encompass this and similar claims, it would simply re» move the jurisdiction of the bankruptcy court over these matters, leaving the jurisdictional provision and adjudicatory structure intact with respect to other types of claims, and thus subject to Art. Ill constitutional challenge on a claim-by-claim basis. * * * We think that it is for Congress to determine the proper manner of restructuring the Bankruptcy Act of 1978 to conform to the requirements of Art. Ill, in the way that will best effectuate the legislative purpose. - U.S. at -, 102 S.Ct. at 2880, note 40. Justice Rehnquist, with whom Justice O’Connor joined, concluded that only “so much of the Bankruptcy Act of 1978 as enables a Bankruptcy Court to entertain and decide Northern’s" }, { "docid": "8467286", "title": "", "text": "was eventually settled for $70,000. . This provision of the Bankruptcy Code allows a debtor.to elect either the federal exemptions from property of the estate or the exemptions provided by the laws applicable on the date of filing of the state in which the debtor is domiciled. 11 U.S.C. § 522(b)(2). See infra note 6 for pertinent text of the statute. . This section was formerly 11 U.S.C. § 110(a)(5) (1976). . 11 U.S.C. § 522(b) states, inter alia, that [notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection.... Such property is— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor's domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place.... . Mr. Geise cites In re Mitchell, 73 B.R. 93 (Bankr.E.D.Mo.1987), a Missouri bankruptcy court decision, in support of his claimed exemption. That decision, like the Wisconsin bankruptcy court's decision in Brandstaetter, held that property of the estate which is effectively exempt from attachment and execution under Missouri law may be allowed as an exemption in bankruptcy. In re Mitchell, 73 B.R. at 94. Despite being the progenitor of a line of Missouri cases exempting personal injury claims, Mitchell is inapplicable to the present action. Mitchell was controlled by Missouri exemption law, which differs from Wisconsin exemption law in at least one significant respect. Under the Missouri opt-out statute, the state has restricted its debtors to exempting only that property \"that is exempt from attachment and execution" }, { "docid": "18792341", "title": "", "text": "brought into the bankruptcy estate by 11 U.S.C. § 541(a), which reads in relevant part: (a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located: (1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debt- or in property as of the commencement of the case. (2) All interests of the debtor and the debtor’s spouse in community property as of the commencement of the case that is— (A) under the sole, equal, or joint management and control of the debtor; or (B) liable for an allowable claim against the debtor, or for both an allowable claim against the debtor and an allowable claim against the debtor’s spouse, to the extent that such interest is so liable. It is now established law that this provision brings entireties property into the bankruptcy estate. See Chippenham Hospital v. Bondurant, 716 F.2d 1057, 1058 (4th Cir.1983); Napotnik v. Equibank & Parkvale Savings Association, 679 F.2d 316, 318 (3d Cir.1982); In re Trickett, 14 B.R. 85, 88-89 (Bankr.W.D.Mich.1981); In re Ford, 3 B.R. 559, 564-71 (Bankr.D.Md.1980) (en banc), aff'd on the opinion of the bankruptcy court sub nom. Greenblatt v. Ford, 638 F.2d 14 (4th Cir.1981). The debtor may be able to exempt the entireties property under 11 U.S.C. § 522(b). At the time this ease was filed, that provision read in full: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate either— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately" }, { "docid": "14634030", "title": "", "text": "To summarize, we hold that, to the extent the debtor and the nonfiling spouse are indebted jointly, property owned as a tenant by the entireties may not be exempted from an individual debtor’s bankruptcy estate under § 522(b)(2)(B) and the trustee may administer such property for the benefit of the joint creditors under § 363(h). Accordingly, the judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. . All further references to the Bankruptcy Code and to individual section numbers refer to Title 11 of the United States Code. . See Greenblatt v. Ford, 638 F.2d 14 (4 Cir. 1981); Ragsdale v. Genesco, Inc., 674 F.2d 277 (4 Cir. 1982); cf. Sovran Bank, N.A. v. Anderson, 743 F.2d 223 (4 Cir.1984) (reviewing lifting of the automatic stay over debtor's claim of exemption); Chippenham Hospital, Inc. v. Bondurant, 716 F.2d 1057 (4 Cir. 1983) (same). . Section 522(d) lists federal bankruptcy exemptions, and § 522(b)(1) allows a debtor to choose those exemptions \"unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize.” All of the states in this circuit and most states nationwide have opted out of the federal bankruptcy exemptions. See 7 Collier on Bankruptcy 1 n. 6 (15th ed. 1985). . Section 363(f) provides in full: (f) The trustee may sell property under subsection (b) or (c) of this section free and clear of any interest in such property of an entity other than the estate, only if— (1) applicable nonbankruptcy law permits sale of such property free and clear of such interests; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest. . Section 363(h) provides: (h) Notwithstanding subsection (f) of this section," }, { "docid": "226529", "title": "", "text": "(citing Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946)). Hood established that the exercise of state power, whether it is to legislate or to assert immunity from suit, is limited by the uniformity requirement set forth in the Bankruptcy Clause. C. The existence of concurrent jurisdiction is insufficient to protect Michigan’s bankruptcy-specific exemption statute from constitutional challenge. As discussed supra, the Bankruptcy Reform Act of 1978 included a provision which is commonly referred to as the “opt-out” clause. 11 U.S.C. § 522(b)(2) of the Act allowed states to affirmatively opt-out of the enumerated federal exemptions completely, thereby restricting debtors to the particular exemptions available in their state. 11 U.S.C. § 522(b)(8) allows debtors in non opt-out states to choose between the federal exemptions and “State or local law that is applicable on the date of the filing of the petition.” Because states may control which exemption scheme a state resident may choose, states are said to have “concurrent” jurisdiction with the federal government in the area of exemptions. The bankruptcy court relied on Rhodes v. Stewart, 705 F.2d 159 (6th Cir.1983) and Storer v. French (In re Storer), 58 F.3d 1125 (6th Cir.1995), for the proposition that 11 U.S.C. § 522(b)(1) was “ ‘a recognition of the concurrent legislative power of the state legislatures to enact laws governing bankruptcy exemptions.’ ” Jones, 428 B.R. at 724 (citations omitted). The general proposition is correct, but the cases are not persuasive authority on the issue before the Panel. In Rhodes, the Sixth Circuit Court of Appeals reversed a judgment of the Bankruptcy Court for the Middle District of Tennessee that held as invalid Tennessee’s statute “opting-out” of the federal bankruptcy exemption scheme. The Sixth Circuit agreed with the Fifth Circuit’s holding in In re McManus, 681 F.2d 353, 355-56 (5th Cir.1982), that “states are empowered to create whatever exemptions they elect,” even if they are more or less restrictive than the federal exemption scheme. Rhodes, 705 F.2d at 163. In Storer, the Sixth Circuit addressed whether Ohio’s opt-out statute, which denied debtors the right" }, { "docid": "18792342", "title": "", "text": "Parkvale Savings Association, 679 F.2d 316, 318 (3d Cir.1982); In re Trickett, 14 B.R. 85, 88-89 (Bankr.W.D.Mich.1981); In re Ford, 3 B.R. 559, 564-71 (Bankr.D.Md.1980) (en banc), aff'd on the opinion of the bankruptcy court sub nom. Greenblatt v. Ford, 638 F.2d 14 (4th Cir.1981). The debtor may be able to exempt the entireties property under 11 U.S.C. § 522(b). At the time this ease was filed, that provision read in full: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate either— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place; and (B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable non-bankruptcy law. If not specifically exempted, the debtor’s interest in the entireties property may be sold pursuant to 11 U.S.C. § 363(h)-(j). Under Michigan law, ordinary creditors cannot reach interests in entireties property, and the entire interest will therefore be exempt if there are no joint creditors. Joint creditors, however, can reach entireties interests, subject only to the $3,500 homestead exemption in Mich. Const, art. 10, § 3. The circuits have split on the question whether entireties property is exempt from joint creditors under 11 U.S.C. § 522(b)(2)(B). The Third Circuit has held that a creditor with a judgment on a joint" }, { "docid": "18880767", "title": "", "text": "statute to be preempted. Moreover, even if one were to find the statute to be otherwise valid, since § 513.430(10)(e) allows a bankruptcy court to determine that less than the full amount of a debtor’s pension plan funds are exempt in bankruptcy, the statute conflicts with the anti-alienation provisions of ERISA. As the appellants wrote in their own reply brief, “[i]f § 513.430(10)(e) is preempted, Debtors submit that any determination of an amount ‘reasonably necessary’ for their support under that statute is entirely superfluous and irrelevant....” Reply Brief of Appellants at 10. Therefore, the question of whether the alleged concealment of the bed and breakfast was something that should have been properly considered justification for denying exempt status to the ERISA pension benefits and IRAs is rendered moot. V. Furthermore, since the Bankruptcy Court’s findings relating to the concealment issue are the basis of points 4 and 5 on appeal, those issues are likewise rendered moot by this Court’s holding that Mo.Rev.Stat. § 513.430(10)(e) has been preempted. VI. Accordingly, it is hereby ORDERED that the Bankruptcy Court’s “Amended Memorandum Opinion” of November 6, 1989 is hereby quashed. It is further ORDERED that Mo.Rev.Stat. § 513.427 and Mo.Rev.Stat. § 513.430(10)(e) are preempted by ERISA for the reasons set out above. It is further ORDERED that appellants’ remaining arguments are either rejected or deemed moot for the reasons set out in the body of this order. It is further ORDERED that this matter is remanded to the Bankruptcy Court for action consistent with this opinion. . 11 U.S.C. § 522(b) reads, in pertinent part, as follows: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection.... Such property is— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2)(A) any property that is exempt under Federal law, other than subsection (d) of" }, { "docid": "6928158", "title": "", "text": "law which in this case is North Carolina law because the injury occurred in North Carolina and all benefits were paid pursuant to North Carolina’s worker’s compensation act. The answer to the question of which state law applies is found in 11 U.S.C. § 522(b)(2) which states in pertinent part: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection.... (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place; The statute is dear; the exemptions available to a debtor in a state that has “opted out” of the federal bankruptcy exemptions provided in subsection (d) of § 522 are those provided by the law of his domicile. In re Dixson, 153 B.R. 594 (Bankr.M.D.Fla.1993); In re Pizzi, 153 B.R. 357 (Bankr.S.D.Fla.1993); In re Wellberg, 12 B.R. 48 (Bankr.E.D.Va.1981); In re Volk, 26 B.R. 457 (Bankr.D.S.D.1983). The debtor has the burden of establishing entitlement to exemptions claimed. In re Estridge, 7 B.R. 873, 874 (Bankr.M.D.Fla.1980). No evidence of debtor’s residency or debt- or’s intent to return to North Carolina or to stay permanently in Florida was presented. The sole evidence presented regarding residency or domicile is the inferences which may be drawn from the fact that debtors deposited $84,000.00 of the worker’s compensation settlement into a bank account in Florida in November, 1993, and that those funds were then used to purchase a certificate of deposit from a Florida" }, { "docid": "1519395", "title": "", "text": "compromise needed for quick enactment of the Code may result in erosion of subsection 522(d)’s benefits.”). . Comment, “Protection of a Debtor’s ‘Fresh Start’ Under the New Bankruptcy Code,” 29 Cath.U.L.Rev. 843, 856 (1980). . Comment, supra note 54, at 865. . Aaron, supra note 51, at 184; See Hertz, supra note 53, at 339; Hughes, “Code Exemptions: Far-Reaching Achievement,” 28 DePaul L.Rev. 1025, 1027 n. 14 (1979); Rendleman, [Shuchman and Rhorer, “Personal Bankruptcy Data for Opt-Out Hearings and Other Purposes,” 56 Am.Bankr.L.J. 1, 2 (1982).] Comment, supra note 54, at 864; Comment, “The Bankruptcy Reform Act of 1978: An Exemption Windfall for Joint Debtors?” 18 Cal.W.L. Rev. 80, 94 (1982). . The Seventh Circuit’s ruling implicitly overrules In re Balgemann, 16 B.R. 780 (Bkrtcy.N. D.I11.1982), which held that states “which wish to elect to opt out of the federal exemptions must still provide debtors adequate property for them to begin their fresh starts.” Balgem-ann, at 782. The Balgemann court concluded that the Illinois exemption laws were invalid because they failed to provide exemptions “comparable to § 522(d)(5) and 522(d)(3).” Id. at 783. .The Sixth Circuit’s ruling overrules the conclusion of the lower court that states do not have unfettered authority to regulate bankruptcy exemptions. In re Rhodes, 14 B.R. 629 (Bkrtcy.M.D.Tenn.1981). The lower court had decided that “for a state to effectively opt its citizens out of § 522(d) it must provide a scheme of exemptions which is consistent with [federal] policy” which meant not inconsistent with or more restrictive than the exemptions given in Section 522(d). The Rhodes decision by the Sixth Circuit resolves the conflict between Foster v. City Loan and Savings Co., 16 B.R. 467 (D.C.N.D.Ohio 1981) (holding that Section 522(b) provides no limitations on state exemption statutes) and Curry v. Associates Financial Services, 11 B.R. 716 (D.C.N.D.Ohio 1981) (holding that a state “cannot merely authorize that the federal exemptions are not available; there also must be concomitant state exemptions sufficient both to protect the debt- or from destitution and to provide the basic necessities that will allow the debtor to embark upon a fresh start.”)" }, { "docid": "21722359", "title": "", "text": "Matter of Goff, 706 F.2d at 586. The failure to mention ERISA in the legislative history accompanying § 522(b)(2)(A) is, therefore, both purposeful and reasoned. [Footnote omitted] Appellant’s reliance on the Ninth Circuit case of Franchise Tax Board v. Construction Laborers et al., 679 F.2d 1307 (9th Cir.1982), is misplaced since it was reversed by the Supreme Court. Moreover, it dealt only with the power to garnish or levy against retirement benefits of a solvent debtor under state law and did not address the nature of federal exemptions in a Bankruptcy context. Similarly, appellant’s discussion of certain District and Appellate Court cases from other jurisdictions is not on point since those cases likewise do not deal with Federal non-bankruptcy exemptions pursuant to 11 U.S.C. § 522(b)(2)(A). Although there are a few Bankruptcy Court decisions outside this Circuit to the contrary, the holdings of our sister circuits in Goff, Graham, and Lichstrahl are controlling and should be adopted by this Circuit. Thus, pursuant to the solid weight of authority of Goff and its progeny, we hold that the anti-alienation provisions of ERI-SA and the Internal Revenue Code do not create Federal non-bankruptcy exemptions for ERISA qualified plans under 11 U.S.C. § 522(b)(2)(A). AFFIRMED. . Note that the debtor’s Statement of Affairs (Appellant’s Excerpts of Record on Appeal, p. 7), Appellee’s Brief (p. 3) and Appellant’s Brief (p. 13), list the date of the loan as May, 1981, while the Bankruptcy Court (Appellant's Excerpts of Record on Appeal p. 17) and District Court (Appellant’s Excerpts of Record on Appeal p. 29) refer to the loan date as May, 1980. We believe 1981 is the correct year. . 11 U.S.C. § 522(b) provides in relevant part: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate either— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2) (A) any property that is exempt under Federal law, other than subsection" }, { "docid": "7038265", "title": "", "text": "MEMORANDUM DECISION GEORGE L. PROCTOR, Bankruptcy Judge. Plaintiff seeks to declare Florida Statute 222.20 unconstitutional. Plaintiff is a single person residing in the State of Florida who filed a voluntary petition under Chapter 7 of the Bankruptcy Code. The State of Florida, in accordance with 11 U.S.C. § 522(b), enacted Florida Statute 222.20, which precludes citizens of Florida from utilizing federal exemptions provided under the Bankruptcy Code. Florida residents who file bankruptcy may avail themselves only of those exemptions permitted by Article 10, § 4 of the Florida Constitution and Section 222 Florida Statutes. To qualify for these exemptions a debtor in bankruptcy must be the head of a family. Plaintiff contends that Florida Statute 222.20 denies her equal protection of the law, and is therefore unconstitutional, since it prohibits her from using exemptions which would be available to her under federal exemptions, but fails to provide her, a single person, with comparable exemptions under state law. In response to plaintiff’s complaint, all defendants have filed motions to dismiss. Title 11, U.S.C. § 522(b) provides that an individual debtor may exempt from property of the estate either (1) property that is specified under subsection (d) of this section, unless the state law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2)(A) any property that is exempt under federal law, other than subsection (d) of this section, or State or local law .... Simply stated, the Bankruptcy Code provides that federal exemptions are available to any debtor unless the state where the debtor resides has opted out of the federal exemptions. The State of Florida availed itself of the opt-out provision in Florida Statute 222.20. The constitutionality of the opt-out provision has recently been approved by the United States District Court for the Middle District of Florida, Ocala Division, in In re Lausch, 16 B.R. 162 (D.C.1981) (affirming this Court 12 B.R. 55 Bkrtcy.). In Lausch a Chapter 7 Trustee argued that 11 U.S.C. § 522(b)(1) and (b)(2)(A) did not provide a uniform bankruptcy law, and that, therefore," }, { "docid": "18778388", "title": "", "text": "MEMORANDUM RUSSELL H. HIPPE, Jr., Bankruptcy Judge. This matter is before the court on the complaint of a debtor attacking the efficacy of legislation enacted by the Tennessee General Assembly denying residents of this state the right to claim the federal bankruptcy exemptions provided by 11 U.S.C. § 522(d). The pertinent provision of the Bankruptcy Reform Act of 1978 which ap pears to grant the states such authority is contained in subsection (b) of 11 U.S.C. § 522 which provides in its entirety: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate either— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debt- or under paragraph (2)(A) of this subsection specifically does not so authorize; (2)(A) any property that is exempt under Federal Law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place; and (B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law. 11 U.S.C. § 522(b) (1979) [emphasis added]. In the spring of 1980 the Tennessee General Assembly enacted Public Chapter No. 919 which extensively amended the Tennessee exemption statutes and included the following new provision: SECTION 4. Tennessee Code Annotated, Title 26, as amended, relating to execution, exempt personal property, homestead and real property exemptions, and other related subjects, be and the same is hereby amended by adding at the end of said Title 26, Tennessee Code Annotated, a new Chapter 9 to read as follows: Chapter 9. Exemptions for bankruptcy. Section 26-901" }, { "docid": "17899353", "title": "", "text": "($5,000 versus $7,500) and in terms of restrictions; a Tennessee debtor may only exempt the homestead used “as a principal place of residence” whereas the debtor authorized to utilize the federal homestead exemption may exempt that used “as a residence”. Kenneth Rhodes (Rhodes) filed a voluntary Chapter 7 petition in bankruptcy and sought to rely upon the federal exemption scheme embodied in 11 U.S.C. § 522(d) to exempt all unencumbered real property including a 6/365 interval time-sharing ownership interest in a condominium located in Florida for which a purchase price of $3,800 had been paid. Since the condominium was not his principal place of residence, it was not exempted under Tennessee’s homestead provision, T.C.A. § 26-2-301, although it would have been exempt were Rhodes permitted to apply the federal exemption. The trustee in bankruptcy petitioned the bankruptcy court to apply the more restrictive exemptions of Tennessee bankruptcy statutes since Tennessee had opted-out of the federal exemption scheme as permitted by 11 U.S.C. § 522(b)(1). The bankruptcy court declared Tennessee’s opt-out statute “invalid” and permitted Rhodes to utilize the federal exemption. This appeal ensued. Congressional authority to enact uniform bankruptcy laws is derivative of Article 1, § 8, cl. 4 of the United States Constitution which gives to Congress power “To establish ... uniform Laws on the subject of Bankruptcies throughout the United States” (Bankruptcy Clause). The Supreme Court has pronounced that the Bankruptcy Clause requires only geographical rather than personal uniformity. Hanover National Bank v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113 (1902). See also: Stellwagen v. Glum, 245 U.S. 605, 38 S.Ct. 215, 62 L.Ed. 507 (1918). This Court concludes that 11 U.S.C. § 552(b)(1), which authorizes states to opt-out of the federal exemption scheme allowing the states to elect differing exemption structures, is an exercise of the legislative prerogative to establish a “uniform law” and therefore falls within that scope of authority provided to Congress in the Bankruptcy Clause. Accord: In re Sullivan, 680 F.2d 1131 (7th Cir.1982) (detailed and well-reasoned opinion); In re Lausch, 16 B.R. 162 (M.D.Fla. 1981); In re Ambrose, 4 B.R." }, { "docid": "18715243", "title": "", "text": "541(a)(1), 11 U.S.C. Sec. 541(a)(1), includes in the bankruptcy estate all the legal or equitable property interests of the bankrupt as of the commencement of the case. Then Section 522, 11 U.S.C. Sec. 522, allows the bankrupt certain exemptions. Specifically, in this case, the bankrupt chose to exercise his exemptions under Section 522(bX2)(B) which reads: “(b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate ... “(2)(B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbank-ruptcy law.” (emphasis added). Since in Tennessee, property held by the entirety is exempt from process by the creditors of an individual spouse, Robinson v. Trusdale County, 516 S.W.2d 626, 632 (Tenn.1974), the bankruptcy court correctly held that the two parcels of land in the instant case were exempt from the bankruptcy estate and could not be sold by the trustee. The trustee takes issue with this holding urging that the wording of Section 522(b)(2)(B), “exempt from process under applicable non-bankruptcy law” suggests a statutory exemption from process rather than the common law immunity provided by Tennessee case law. The bankruptcy judge dealt with this contention in his opinion saying, “Congress for some reason said ‘exempt from process’ rather than ‘immune from process.’ ‘Exempt’ suggests statutory exemptions, but Congress apparently meant common law immunity. That should be obvious since state statutory exemptions are covered in the sub-paragraph (A) of the same subsection.” In re Dawson, 10 B.R. 680, 683 (Bkrtcy.E.D.Tenn.1980). This interpretation is persuasive and in accord with other judicial decisions. See In re Ford, 3 B.R. 559 (Bkrtcy.D.Md.1980), In re Thacker, 5 B.R. 592 (Bkrtcy.W.D.Va.1980), In re Shaw, 5 B.R. 107 (Bkrtcy.M.D.Tenn.1980), In re Koehler, 6 B.R. 203 (Bkrtcy.M.D.Fla.1980) and In re Barsotti, 7 B.R. 205 (Bkrtcy.W.D.Pa.1980). Nonetheless, the appellant contends that the result reached under this construction of the Bankruptcy Code is identical with that under" }, { "docid": "13796360", "title": "", "text": "OPINION AND ORDER ON LIEN AVOIDANCE UNDER 11 U.S.C. § 522(f) G.L. PETTIGREW, Bankruptcy Judge. The matter before the Court is the question of the availability of the lien avoidance provisions of 11 U.S.C. § 522(f) to Ohio debtors. This Court must follow the binding precedent supplied by the United States Sixth Circuit Court of Appeals in the case of Pine/Giles v. Credithrift of America, 717 F.2d 281, 10 B.C.D. 1467 (6th Cir.1983), holding that states such as Ohio may preclude the use of 11 U.S.C. § 522(f) by adopting “exemption” statutes to that effect. Consequently, the Court must reluctantly deny the debtors’ application for lien avoidance. I. Facts The debtors have granted a creditor non-possessory, nonpurchase-money security interests in property which, absent the consensual lien encumbrances, would be exempt under Ohio law. The debtors herein have sought relief under Chapter 7 of the Bankruptcy Code and have filed an application to avoid the lien, pursuant to 11 U.S.C. § 522(f). The application was filed after the effective date of the Pine/Giles decision. II. Applicable Law This matter concerns the interrelation of two subsections of § 522 of the Bankruptcy Code. Subsection (b) allows the states to “opt out” of the federal exemptions listed in subsection (d) of § 522. It states that: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate either— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debt- or under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative, (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place; and (B) any interest in property in which the debtor" }, { "docid": "1519396", "title": "", "text": "to § 522(d)(5) and 522(d)(3).” Id. at 783. .The Sixth Circuit’s ruling overrules the conclusion of the lower court that states do not have unfettered authority to regulate bankruptcy exemptions. In re Rhodes, 14 B.R. 629 (Bkrtcy.M.D.Tenn.1981). The lower court had decided that “for a state to effectively opt its citizens out of § 522(d) it must provide a scheme of exemptions which is consistent with [federal] policy” which meant not inconsistent with or more restrictive than the exemptions given in Section 522(d). The Rhodes decision by the Sixth Circuit resolves the conflict between Foster v. City Loan and Savings Co., 16 B.R. 467 (D.C.N.D.Ohio 1981) (holding that Section 522(b) provides no limitations on state exemption statutes) and Curry v. Associates Financial Services, 11 B.R. 716 (D.C.N.D.Ohio 1981) (holding that a state “cannot merely authorize that the federal exemptions are not available; there also must be concomitant state exemptions sufficient both to protect the debt- or from destitution and to provide the basic necessities that will allow the debtor to embark upon a fresh start.”) . See cases cited in notes 57 and 58. . Judge Schnieder’s decision in In re Locarno was appealed but the appeal was dismissed. The Maryland legislature has since amended Maryland’s exemption statute, effective July 1, 1983. . Commission Report, supra note 9, at 169. . Id . Id. In the Commission’s view, non-purchase money security interests in items such as wearing apparel, household goods, and health aids had “little or no value to a creditor, other than as a means of coercing payment.” . The proposed bankruptcy administrator would allow exemptions. . Under the Act of 1898, the resolution of disputes relating to exemptions was left to the state courts, where debtors were likely to lose exempt property. . The converse is also true. Exemptions serve more federal bankruptcy objectives than assisting debtors to make a fresh start. Increased exemptions may reduce the number of nominal asset cases, thus reducing the costs of the bankruptcy system. The Commission, for example, found that nearly 40% of the 17 million dollar cost of the bankruptcy system" }, { "docid": "226530", "title": "", "text": "exemptions. The bankruptcy court relied on Rhodes v. Stewart, 705 F.2d 159 (6th Cir.1983) and Storer v. French (In re Storer), 58 F.3d 1125 (6th Cir.1995), for the proposition that 11 U.S.C. § 522(b)(1) was “ ‘a recognition of the concurrent legislative power of the state legislatures to enact laws governing bankruptcy exemptions.’ ” Jones, 428 B.R. at 724 (citations omitted). The general proposition is correct, but the cases are not persuasive authority on the issue before the Panel. In Rhodes, the Sixth Circuit Court of Appeals reversed a judgment of the Bankruptcy Court for the Middle District of Tennessee that held as invalid Tennessee’s statute “opting-out” of the federal bankruptcy exemption scheme. The Sixth Circuit agreed with the Fifth Circuit’s holding in In re McManus, 681 F.2d 353, 355-56 (5th Cir.1982), that “states are empowered to create whatever exemptions they elect,” even if they are more or less restrictive than the federal exemption scheme. Rhodes, 705 F.2d at 163. In Storer, the Sixth Circuit addressed whether Ohio’s opt-out statute, which denied debtors the right to use the federal exemption scheme, violated the Privileges and Immunities Clause of the Fourteenth Amendment, the Supremacy Clause, and the Fifth Amendment to the Constitution of the United States, as the debtors had argued. The Court in Storer held that the Rhodes decision was controlling and therefore, the debtors’ argument that Ohio’s opt-out statute was invalid under the Supremacy Clause was without merit. Storer, 58 F.3d at 1129. Rhodes and Storer both stand for the proposition that the U.S. Constitution permits Congress to give states the power to prohibit any state resident who files for bankruptcy from using the exemptions permitted under the Bankruptcy Code. These cases are consistent with the ease law in other jurisdictions which hold that state laws that entirely “opt-out” of the federal exemption (codified at 11 U.S.C. § 522(b)(2)) are constitutional. Rhodes and Storer also correctly conclude that states have “concurrent” jurisdiction in the area of bankruptcy exemptions. In enacting the “opt-out” provision, Congress delegated to the states the power to prevent their residents from choosing federal exemptions. Because" } ]

[ { "docid": "22656976", "title": "", "text": "it had decided that Congress itself had not commanded that definition. Respondents do not defend the legal reasoning of the Court of Appeals. Nevertheless, since this Court reviews judgments, not opinions, we must determine whether the Court of Appeals’ legal error resulted in an erroneous judgment on the validity of the regulations. HH H-( When a court reviews an agency s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. “The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U. S. 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provison for a reasonable interpretation made by the administrator of an agency. We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme" } ]

[ { "docid": "22397658", "title": "", "text": "that it consider the particular circumstances of individual inmates. By definition, particular circumstances cannot be considered in promulgating a blanket rule. Notably, Congress expressed an intent that the BOP take into account the sentencing judge’s recommendation. By its very nature, this requires an individualized determination for each prisoner that- the new regulations categorically do not allow. It is simply not possible to consider individualized circumstances in the drafting room before a prisoner even enters the criminal justice system. E. Chevron Analysis Our review of an agency’s interpretation of its governing statute is normally subject to Chevron deference. This standard of review requires a two-step inquiry: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. For the reasons stated above, it appears to us that the BOP’s regulations do not meet the first prong of the Chevron test. This first prong of Chevron asks whether “the intent of Congress is clear” as to the question at issue. Here, considering the language of § 3621(b), and finding support in the statute’s legislative history, we believe that it is. To be sure, the BOP has been granted broad discretion in placement matters. However, “[e]ven for an agency able to claim all the authority possible under Chevron, deference to its statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.” Gen." }, { "docid": "10476255", "title": "", "text": "on the one hand and the INS’ narrow interpretation of the “known to the Government” requirement on the other. There is simply no administrative process to which to appeal. For the harm suffered by organizational plaintiffs, therefore, no exhaustion is necessary. Their remedy can only be found in federal court. PLAINTIFFS SATISFY THE STANDARD FOR INJUNCTIVE RELIEF In the District of Columbia Circuit, the appropriate four-step test for the issuance of a preliminary injunction is that the movant show that: 1) the party seeking relief is likely to prevail on the merits; 2) that it will suffer irreparable injury if the preliminary relief is not granted; 3) that harm to others will not result if the relief is granted; and 4) that granting the injunction is in the public interest. Washington Metropolitan Transit Commission v. Holiday Tours, 559 F.2d 841 (D.C.Cir.1977); Virginia Petroleum Jobbers, Association v. FPC, 259 F.2d 921 (D.C.Cir.1958). A. Plaintiffs Will Prevail on the Merits This case poses a circumscribed legal question. The sole legal issue before me is the legality of INS’ interpretation of the term: “unlawful status was known to the government as of [January 1, 1982].” The Supreme Court has set forth the appropriate standard and methodology for deciding whether the INS’ interpretation of the contested phrase conflicts with IRCA in clear and certain terms: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer" }, { "docid": "22092882", "title": "", "text": "level at all. Our analysis must begin with Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). We there stated: “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. . . . [A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id., at 842-844. While we agree with the Court of Appeals that Congress in § 346 was speaking directly to the precise question at issue in this case, we cannot agree with the Court of Appeals that Congress unambiguously expressed its intent through its choice of statutory language. The Court of Appeals’ reading of the statute may seem to some to be the more natural interpretation, but the phrasing of § 346 admits of either respondents’ or petitioner’s reading of the statute. As enemies of the dangling participle well know, the English language does not always force a writer to specify which of two possible objects is the one to which a modifying phrase relates. A Congress more precise or more prescient than the one that enacted § 346 might, if it wished petitioner’s position to prevail, have placed “to such extent as he finds necessary for the protection of public health” as an appositive phrase immediately after “shall” rather than as a free-floating phrase after “the quantity therein or thereon.” A Congress equally fastidious and foresighted, but" }, { "docid": "22092885", "title": "", "text": "the FDA. To read §346 as does the FDA is hardly to endorse an absurd result. Like any other administrative agency, the FDA has been delegated broad discretion by Congress in any number of areas. To interpret Congress’ statutory language to give the FDA discretion to decide whether toler anee levels are necessary to protect the public health is therefore sensible. Nor does any other portion of § 346 prohibit the FDA from allowing the shipment of aflatoxin-tainted food without a tolerance level, despite the Court of Appeals’ conclusion to the contrary. The Court of Appeals stated: “Since the existence of a regulation operates to render the food legally unadulterated, the statute, in our view, plainly requires the establishment by regulation of tolerances before aflatoxin-tainted corn may lawfully be shipped in interstate commerce.” 244 U. S. App. D. C., at 283, 757 F. 2d, at 358. The premise of the Court of Appeals is of course correct: the Act does provide that when a tolerance level has been set and a food contains an added harmful substance in a quantity below the tolerance level, the food is legally not adulterated. But one cannot logically draw from this premise, or from the Act, the Court of Appeals’ conclusion that food containing substances not subject to a tolerance level must be deemed adulterated. The presence of a certain premise (i. e., tolerance levels) may imply the absence of a particular conclusion (i. e., adulteration) without the absence of the premise implying the presence of the conclusion. For example, the presence of independent and adequate state-law grounds in the decision of a state supreme court means this Court has no jurisdiction over the case, but the absence of independent and adequate state grounds does not mean that this Court necessarily has jurisdiction. The Act is silent on what specifically to do about food containing an unavoidable, harmful, added substance for which there is no tolerance level; we must therefore assume that Congress intended the general provisions of § 342(a) to apply in such a case. Section 342(a) thus remains available to the FDA" }, { "docid": "494746", "title": "", "text": "Chevron directs them to engage in a bifurcated inquiry. See Passamaquoddy Tribe v. State of Me., 75 F.3d 784, 794 (1st Cir.1996); Strickland I, 48 F.3d at 16. In an oft-quoted passage, the Chevron Court delineated the nature of the inquiry: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82 (footnotes omitted). These are the same questions that this court posed in Strickland I, 48 F.3d at 16, and we retrace our steps to the extent appropriate. A We first look to see if Congress has spoken to the precise question at issue by mandating either the inclusion or the exclusion of principal payments on capital assets from the computation of the “cost of producing self-employment income” under 7 U.S.C. § 2014(d)(9). Since this branch of the inquiry deals exclusively with statutory construction and congressional intent, no deference is due the Secretary’s views. In Strickland I we determined that the statute, 7 U.S.C. § 2014(d)(9), did not require depreciation to be included as a “cost of producing self-employment income.” In reaching this conclusion, we focused on the ambiguity inherent in the word “cost” — a word that Congress chose not to define. We concluded that “the word ‘cost’ is a chameleon, capable of taking on different meanings, and shades of meaning, depending on the subject matter and the circumstances of each particular usage.” Strickland I, 48 F.3d at 19. We therefore" }, { "docid": "22092880", "title": "", "text": "other claims. The Court of Appeals reversed the District Court’s conclusion as to the proper interpretation of § 346. 244 U. S. App. D. C. 279, 757 F. 2d 354 (1985). The Court of Appeals determined that Congress had spoken directly and unambiguously to the precise question at issue: “The presence of the critical word ‘shall’ plainly suggests a directive to the Secretary to establish a tolerance, if a food with an unavoidable . . . deleterious substance is to be considered unadulterated. “It is . . . clear from the structure of the sentence at issue here that the phrase relied upon by the Secretary simply does not modify the pivotal word ‘shall.’” Id., at 282, 283, 757 F. 2d, at 357, 358. After examining the entirety of § 346, the Court of Appeals also concluded that, since tolerance levels make food with added harmful substances unadulterated, tolerance levels were necessary before food could be judged unadulterated. Id., at 283, 757 F. 2d, at 358. The Court of Appeals considered none of the other issues before the District Court, and therefore only the § 346 issue is before this Court. II The FDA’s longstanding interpretation of the statute that it administers is that the phrase “to such extent as he finds necessary for the protection of public health” in § 346 modifies the word “shall.” The FDA therefore interprets the statute to state that the FDA shall promulgate regulations to the extent that it believes the regulations necessary to protect the public health. Whether regulations are necessary to protect the public health is, under this interpretation, a determination to be made by the FDA. Respondents, in contrast, argue that the phrase “to such extent” modifies the phrase “the quantity therein or thereon” in §346, not the word “shall.” Since respondents therefore view the word “shall” as unqualified, they interpret § 346 to require the promulgation of tolerance levels for added, but unavoidable, harmful substances. The FDA under this interpretation of § 346 has discretion in setting the particular tolerance level, but not in deciding whether to set a tolerance" }, { "docid": "2702519", "title": "", "text": "always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Id. (footnotes omitted). “An agency that has been granted authority to promulgate regulations necessary to the administration of a program it oversees may fill gaps in the statutory scheme left by Congress.” Contreras v. United States, 215 F.3d 1267, 1274 (Fed.Cir.2000). An agency may also resolve ambiguities with respect to an issue of interpretation left by Congress as long as the agency’s action is reasonable and consistent in light of the statute and congressional intent. See Gilpin, 155 F.3d at 1355-56. Thus, Chevron deference applies if Congress is either si lent or unclear on a particular issue. However, modifying the traditional Chevron analysis is the doctrine governing the interpretation of ambiguities in veterans’ benefit statutes — that “interpretative doubt is to be resolved in the veteran’s favor,” Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). Yet, “[a]t the same time, we have also recognized that a veteran ‘cannot rely upon the generous spirit that suffuses the law generally to override the clear meaning of a particular provision.’” Boyer v. West, 210 F.3d 1351, 1355 (Fed.Cir.2000) (quoting Smith, 35 F.3d at 1526). IV. Rulemaking Process After notice and comment on a proposed rule, an agency is required to “incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C. § 553. “The purpose of requiring a statement of the basis and purpose" }, { "docid": "6228133", "title": "", "text": "CWA. This argument, posing questions about deference to administrative agencies, brings the discussion to Chevron and its two-part inquiry: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. 467 U.S. at 842-43, 104 S.Ct. 2778. Under step one of Chevron, proceeding with this inquiry into Defendants’ statutory- and regulatory-based objections requires us to determine whether the CWA directly resolves the question raised by extending jurisdiction over the target sites, or if the CWA is silent or ambiguous on that question. If Congress has been silent or ambiguous on the issue — thereby delegating to the EPA and the Corps the authority to give content to the phrase “waters of the United States” — the inquiry proceeds to the second step in the Chevron analysis — determining whether the agency’s regulation extending jurisdiction to the particular waters at issue here reflects a reasonable construction of the statute. The government, of course, asserts that regulatory jurisdiction over the target sites pursuant to § 230.3(s) represents a proper exercise of Congress’ Commerce Clause power, which Congress delegated to the EPA and the Corps. Specifically, in its brief, the government asserts jurisdiction over the waters at issue in this case by relying: on the following three subsections of the regulatory definition of “waters of the United States”: subsection (1), which refers, inter alia, to waters" }, { "docid": "22092892", "title": "", "text": "is quite clearly the phrase “limiting the quantity therein or thereon,” which immediately precedes it, rather than the word “shall,” which appears eight words before it. Thus, the Commissioner is to “limi[t] the quantity [of an added, unavoidable poisonous or deleterious substance] therein or thereon to such extent as he finds necessary for the protection of public health.” By in stead reading the section to mean that “the Secretary shall promulgate regulations ... to such extent as he finds necessary,” the Court ignores the import of the words immediately following, which specify the effect of the “limits so fixed”— i. e., fixed by “limiting the quantity [of the poisonous substance] therein or thereon to such extent as he finds necessary for the protection of public health” — which can only mean that the qualification modifies the limits set by regulation rather than the duty to regulate. In addition, the Court’s construction, by skipping over the words “limiting the quantity therein or thereon,” renders them superfluous and of no operative force or effect. Indeed, the Court renders the very language it construes superfluous, because reading the provision to authorize (rather than mandate) the promulgation of regulations assigns it an office already filled by the general rulemaking authority conferred later in the Food, Drug, and Cosmetic Act. See 21 U. S. C. § 371(a). If Congress intended the Secretary to have unbridled authority to proceed with action levels, instead of with formal regulations, there was no need to enact this part of § 346 at all. This is plainly a case in which “the intent of Congress is clear [and] the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). The task of interpreting a statute requires more than merely inventing an ambiguity and invoking administrative deference. A statute is not “unclear unless we think there are decent arguments for each of two competing interpretations of it.” R. Dworkin, Law’s Empire 352 (1986). Thus, to say that the" }, { "docid": "23106454", "title": "", "text": "instance, therefore, I am not prepared to order a construction in conflict with the view of the agency happily charged with these statutes’ interpretation. Accordingly I conclude it best, in light of all the circumstances, that we defer to the agency. Congress has given the Secretary the power to administer both the Medicare and Medicaid Acts, see 42 U.S.C. §§ 1395ff(a), 1396a(b), and deference is due to the Secretary’s interpretations of them under the principles announced in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Those principles, which are well known but merit repeating here, are stated quite simply: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly’ spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well 'as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. ‡ ‡ & sfc ‡ If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Id. at 842-44, 104 S.Ct. at" }, { "docid": "6877388", "title": "", "text": "reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2781-82. Under this instruction, we must first determine whether Congress directly addressed binding arbitration under the MMWA. See id. If Congress’ intent is clear, our inquiry ends as we must uphold Congress’ will. Id. If, however, Congress is silent or the statute is ambiguous, we must then decide if the FTC’s interpretation is reasonable. Id. a. Congress’ intent “Addressing the first prong of the Chevron inquiry ... we begin by examining the language in the enforcement provision itself.” Smith v. BellSouth Teleccomm., 273 F.3d 1303, 1307 (11th Cir. 2001). After the previously illustrated thorough examination of the MMWA’s text and legislative history, we conclude that Congress failed to directly address binding arbitration anywhere in the text or legislative history of the MMWA. See discussion infra Parts IV.B.3.a-3.b. Because we believe the intent of Congress is unclear, we must proceed to the second prong of the Chevron analysis. b. Reasonableness of the FTC’s construction The second prong of the Chevron inquiry requires us to determine whether the FTC’s construction of the statute is reasonable. See Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2781-82; see also Amberg v. FDIC, 934 F.2d 681, 687 (5th Cir.1991) (“[W]e will not bow our heads with closed eyes and walk away; rather" }, { "docid": "10476256", "title": "", "text": "INS’ interpretation of the term: “unlawful status was known to the government as of [January 1, 1982].” The Supreme Court has set forth the appropriate standard and methodology for deciding whether the INS’ interpretation of the contested phrase conflicts with IRCA in clear and certain terms: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted). 1. Congress’ Intent is Made Clear by the Plain Meaning of the Statutory Language The first step in the analysis mandated by Chevron is to determine whether the “the statute unambiguously expresses Congressional intent on the precise question at issue.” Coalition to Preserve the Integrity of American Trademarks v. United States, 790 F.2d 903 (D.C.Cir.) cert. granted sub nom. K Mart Corporation v. Cartier, 479 U.S. 1005, 107 S.Ct. 642, 93 L.Ed.2d 699 (1986). Obviously the first place to look for legislative intent is in the words of the statute. There is a powerful presumption that Congress means what it says—and that Congressional intent is expressed by the plain meaning of the language used. INS v. Hector, 479 U.S. 85, 107 S.Ct. 379, 381, 93 L.Ed.2d 326 (1986), on remand Hector v. INS, 810 F.2d 65 (3rd Cir.1987). I believe that INA Section" }, { "docid": "22092883", "title": "", "text": "While we agree with the Court of Appeals that Congress in § 346 was speaking directly to the precise question at issue in this case, we cannot agree with the Court of Appeals that Congress unambiguously expressed its intent through its choice of statutory language. The Court of Appeals’ reading of the statute may seem to some to be the more natural interpretation, but the phrasing of § 346 admits of either respondents’ or petitioner’s reading of the statute. As enemies of the dangling participle well know, the English language does not always force a writer to specify which of two possible objects is the one to which a modifying phrase relates. A Congress more precise or more prescient than the one that enacted § 346 might, if it wished petitioner’s position to prevail, have placed “to such extent as he finds necessary for the protection of public health” as an appositive phrase immediately after “shall” rather than as a free-floating phrase after “the quantity therein or thereon.” A Congress equally fastidious and foresighted, but intending respondents’ position to prevail, might have substituted the phrase “to the quantity” for the phrase “to such extent as.” But the Congress that actually enacted § 346 took neither tack. In the absence of such improvements, the wording of § 346 must remain ambiguous. The FDA has therefore advanced an interpretation of an ambiguous statutory provision. “This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that [the agency] might have adopted but only that [the agency’s] understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency]. Train, Inc. v. NRDC, 421 U. S. 60, 75, 87 (1975) . . . .” Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985). We find the FDA’s interpretation of § 346 to be sufficiently rational to preclude a court from substituting its judgment for that of" }, { "docid": "22092881", "title": "", "text": "issues before the District Court, and therefore only the § 346 issue is before this Court. II The FDA’s longstanding interpretation of the statute that it administers is that the phrase “to such extent as he finds necessary for the protection of public health” in § 346 modifies the word “shall.” The FDA therefore interprets the statute to state that the FDA shall promulgate regulations to the extent that it believes the regulations necessary to protect the public health. Whether regulations are necessary to protect the public health is, under this interpretation, a determination to be made by the FDA. Respondents, in contrast, argue that the phrase “to such extent” modifies the phrase “the quantity therein or thereon” in §346, not the word “shall.” Since respondents therefore view the word “shall” as unqualified, they interpret § 346 to require the promulgation of tolerance levels for added, but unavoidable, harmful substances. The FDA under this interpretation of § 346 has discretion in setting the particular tolerance level, but not in deciding whether to set a tolerance level at all. Our analysis must begin with Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). We there stated: “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. . . . [A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id., at 842-844." }, { "docid": "13986948", "title": "", "text": "Congress, if it desired to tax telephone charges based only on elapsed time, could have used the disjunctive. That is, Congress could have said, “varies in amount with the distance or elapsed transmission time of each individual communication.” While Congress could have used such language, that language has the potential for a different set of possible interpretations. Some would argue that such language excludes charges that vary on both bases. The argument, moreover, is the equivalent of the social host giving the following retort to the second guest: “If you wanted beer or wine, you should have said ‘or.’ ” In another case involving a long-standing agency interpretation asserted to be contrary to plain statutory meaning, the Supreme Court rejected a comparable argument. In Young v. Community Nutrition Institute, the Court was asked to determine whether, under 21 U.S.C. § 346, the Food and Drug Administration (“FDA”) had a mandatory or discretionary duty to promulgate regulations determining the tolerance levels for harmful, but unavoidable, substances in food. 476 U.S. 974, 978, 106 S.Ct. 2360, 90 L.Ed.2d 959 (1986). Section 346 provided that “the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of the public health.” Id. at 977, 106 S.Ct. 2360. The FDA had long interpreted the phrase “to such extent as he finds necessary” as modifying the word “shall.” Id. at 979, 106 S.Ct. 2360. A consumer and two public interest groups argued that “to such extent” modifies only “the quantity therein or thereon,” thereby requiring the FDA to promulgate tolerance levels. Id. at 980, 106 S.Ct. 2360. The Court reasoned as follows: While we agree with the Court of Appeals that Congress in § 346 was speaking directly to the precise question at issue in this case, we cannot agree with the Court of Appeals that Congress unambiguously expressed its intent through its choice of statutory language. The Court of Appeals’ reading of the statute may seem to some to be the more natural interpretation, but the phrasing of § 346 admits of either respondents’ or" }, { "docid": "2702518", "title": "", "text": "court to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. The court must then decide whether the agency’s action or rule is: 5 U.S.C. § 706(2)(A)-(D). This review is “highly deferential” to the actions of the agency. See LeFevre, 66 F.3d at 1199 (quoting Ethyl Corp. v. Envtl. Protection Agency, 541 F.2d 1, 34 (D.C.Cir.1976)). (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; [or] (D) without observance of procedure required by law.... The first inquiry under 5 U.S.C. § 706, in which we interpret the meaning of relevant statutes, is governed by the standards established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In Chevron, the Court stated: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Id. (footnotes omitted). “An agency that has been granted authority to promulgate regulations necessary to the administration of a program it oversees may fill gaps in the statutory scheme left by Congress.” Contreras v. United States, 215 F.3d 1267, 1274 (Fed.Cir.2000). An agency may also resolve ambiguities with respect to an issue of interpretation left by Congress" }, { "docid": "22092879", "title": "", "text": "specified that such corn was to be used only as feed for mature, nonlactating livestock and mature poultry. Id., at 7447. In connection with this notice, two public-interest groups and a consumer (respondents here) brought suit against the Commissioner of the FDA (petitioner here) in the United States District Court for the District of Columbia. Respondents alleged that the Act requires the FDA to set a tolerance level for aflatoxin before allowing the shipment in interstate commerce of food containing aflatoxin; that the FDA had employed insufficiently elaborate procedures to set its aflatoxin action level even if a tolerance level was not required; and that the FDA’s decision to grant the 1980 exemption from the action level independently violated the Act and the FDA’s own regulations. On a motion for summary judgment, the District Court deferred to the FDA’s interpretation of §346, and therefore ruled that the FDA need not establish a tolerance level for aflatoxin before allowing the shipment of aflatoxin-tainted corn in interstate commerce. The District Court also ruled against respondents on their other claims. The Court of Appeals reversed the District Court’s conclusion as to the proper interpretation of § 346. 244 U. S. App. D. C. 279, 757 F. 2d 354 (1985). The Court of Appeals determined that Congress had spoken directly and unambiguously to the precise question at issue: “The presence of the critical word ‘shall’ plainly suggests a directive to the Secretary to establish a tolerance, if a food with an unavoidable . . . deleterious substance is to be considered unadulterated. “It is . . . clear from the structure of the sentence at issue here that the phrase relied upon by the Secretary simply does not modify the pivotal word ‘shall.’” Id., at 282, 283, 757 F. 2d, at 357, 358. After examining the entirety of § 346, the Court of Appeals also concluded that, since tolerance levels make food with added harmful substances unadulterated, tolerance levels were necessary before food could be judged unadulterated. Id., at 283, 757 F. 2d, at 358. The Court of Appeals considered none of the other" }, { "docid": "8432819", "title": "", "text": "in which the compensation is not premised on who may have been responsible for causing such injury. No-fault insurance includes personal injury protection and medical payments benefits in cases involving personal injuries resulting from operation of a motor vehicle. 32 C.F.R. § 220.12(i) (1995). USAA urges us to reject this definition, arguing that “no-fault insurance” refers only to a state-adopted regime of automobile insurance that pays without regard to fault. When an agency has issued an interpretation of a statute it is entitled to administer, our own interpretation of the statute is not entirely de novo. The Supreme Court has given us guidance, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), in reviewing such agency regulations: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction, as would be necessary in the absence of administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. [Footnotes omitted.] Accordingly, our first task is to apply the “traditional tools of statutory construction,” id. at 843 n. 9, 104 S.Ct. at 2781 n. 9, and determine whether the statute is ambiguous. If we decide that Congress has spoken directly to the precise issue, our job is done; we will “give effect to the unambiguously expressed intent of Congress.” Id. at 843, 104 S.Ct. at 2781. If, however, we find that Congress has not spoken plainly to the issue and the statute is ambiguous, we" }, { "docid": "13986949", "title": "", "text": "L.Ed.2d 959 (1986). Section 346 provided that “the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of the public health.” Id. at 977, 106 S.Ct. 2360. The FDA had long interpreted the phrase “to such extent as he finds necessary” as modifying the word “shall.” Id. at 979, 106 S.Ct. 2360. A consumer and two public interest groups argued that “to such extent” modifies only “the quantity therein or thereon,” thereby requiring the FDA to promulgate tolerance levels. Id. at 980, 106 S.Ct. 2360. The Court reasoned as follows: While we agree with the Court of Appeals that Congress in § 346 was speaking directly to the precise question at issue in this case, we cannot agree with the Court of Appeals that Congress unambiguously expressed its intent through its choice of statutory language. The Court of Appeals’ reading of the statute may seem to some to be the more natural interpretation, but the phrasing of § 346 admits of either respondents’ or petitioner’s reading of the statute. As enemies of the dangling participle well know, the English language does not always force a writer to specify which of two possible objects is the one to which a modifying phrase relates. A Congress more precise or more prescient than the one that enacted § 346 might, if it wished petitioner’s position to prevail, have placed “to such extent as he finds necessary for the protection of public health” as an appositive phrase immediately after “shall” rather than as a free-floating phrase after “the quantity therein or thereon.” A Congress equally fastidious and foresighted, but intending respondents’ position to prevail, might have substituted the phrase “to the quantity” for the phrase “to such extent as.” But the Congress that actually enacted § 346 took neither tack. In the absence of such improvements, the wording of § 346 must remain ambiguous. The FDA has therefore advanced an interpretation of an ambiguous statutory provision. “This view of the agency charged with administering the statute is entitled to considerable deference; and to" }, { "docid": "22092884", "title": "", "text": "intending respondents’ position to prevail, might have substituted the phrase “to the quantity” for the phrase “to such extent as.” But the Congress that actually enacted § 346 took neither tack. In the absence of such improvements, the wording of § 346 must remain ambiguous. The FDA has therefore advanced an interpretation of an ambiguous statutory provision. “This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that [the agency] might have adopted but only that [the agency’s] understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency]. Train, Inc. v. NRDC, 421 U. S. 60, 75, 87 (1975) . . . .” Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985). We find the FDA’s interpretation of § 346 to be sufficiently rational to preclude a court from substituting its judgment for that of the FDA. To read §346 as does the FDA is hardly to endorse an absurd result. Like any other administrative agency, the FDA has been delegated broad discretion by Congress in any number of areas. To interpret Congress’ statutory language to give the FDA discretion to decide whether toler anee levels are necessary to protect the public health is therefore sensible. Nor does any other portion of § 346 prohibit the FDA from allowing the shipment of aflatoxin-tainted food without a tolerance level, despite the Court of Appeals’ conclusion to the contrary. The Court of Appeals stated: “Since the existence of a regulation operates to render the food legally unadulterated, the statute, in our view, plainly requires the establishment by regulation of tolerances before aflatoxin-tainted corn may lawfully be shipped in interstate commerce.” 244 U. S. App. D. C., at 283, 757 F. 2d, at 358. The premise of the Court of Appeals is of course correct: the Act does provide that when a tolerance level has been set and a food contains an added" } ]

[ { "docid": "16605744", "title": "", "text": "district court and compile the record essential to its resolution. Even evidence that appears loony when not accompanied by an account from trial counsel may turn out to have been reasoned through. Compare United States v. Myers, 892 F.2d 642, 647-49 (7th Cir.1990), with United States v. Myers, 917 F.2d 1008 (7th Cir.1990), The best the defendant can hope for is a remand, with instructions to explore explanations for conduct that appears questionable. We have not found any case in this circuit reversing a judgment without such a remand. If all the defendant can get is an opportunity to enlarge the record—something he could obtain with less fuss by a proceeding under § 2255—then raising ineffective assistance on appeal does the defendant no favors. For a defendant assuredly can lose such an argument. E.g., United States v. Donaldson, 978 F.2d 381, 394-95 (7th Cir.1992). Thus a defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose. At oral argument counsel withdrew the request that we decide whether trial counsel was ineffective, to avoid any jeopardy to its presentation under 28 U.S.C. § 2255 after the record can be fleshed out. See United States v. Taglia, 922 F.2d 413, 418 (7th Cir.1991) (a person making a claim of ineffective assistance under § 2255 “is unlikely to get to first base if he already has presented a claim of ineffective assistance to the court of appeals unsuccessfully.”); United States v. Mazak, 789 F.2d 580 (7th Cir.1986); Page v. United States, 884 F.2d 300, 302 (7th Cir.1989); see also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); cf. McCleskey v. Zant, — U.S. —, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Donaldson observes that the extent to which direct appeal is the right occasion to decide whether counsel rendered ineffective assistance remains open within the court. 978 F.2d at 394. Post-trial proceedings equivalent to those under § 2255 might supply the record necessary to an intelligent decision, but nothing of the kind preceded this appeal. Davenport’s" } ]

[ { "docid": "15158820", "title": "", "text": "when it denies a motion for new trial that it lacks the authority to grant. Benson, 941 F.2d at 608. Alternatively, Wiman contends that the district court should have held evidentia-ry hearings on his claims of ineffective assistance of counsel prior to sentencing by treating his motion for new trial as, in effect, either a motion for relief under 28 U.S.C. § 2255 or a dispute requiring resolution prior to sentencing under Fed.R.Crim.P. 32(a). Wiman fails, however, to identify any relevant points or authorities in support of these novel arguments and we need not consider them. D. Ineffective Assistance of Counsel. Wiman also identifies here a number of grounds in support of the contention, first raised in his motion for new trial below, that he received ineffective assistance of counsel. Wiman asserts, however, that his list is not exhaustive as it includes only those aspects of his claim that are “arguable from the record.” (Wiman Br. at 32). The preferred method for raising a claim of ineffective assistance of counsel is either by bringing a motion for new trial or a request for collateral relief under 28 U.S.C. § 2255. Boyles, 57 F.3d at 550; United States v. Mojica, 984 F.2d 1426, 1452 (7th Cir.), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993), - U.S.-, 115 S.Ct. 2633, 132 L.Ed.2d 873 (1995); United States v. Taglia, 922 F.2d 413, 417-19 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). We may, however, review the merits of such a claim when raised for the first time on direct appeal if the record is “sufficiently developed,” United States v. Asubonteng, 895 F.2d 424, 428 (7th Cir.), cert. denied, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990), or if the issue is “sufficiently clear-cut and can be conclusively determined from the trial record. ...” United States v. Fish, 34 F.3d 488, 491 n. 1 (7th Cir.1994); United States v. Zarnes, 33 F.3d 1454, 1473 (7th Cir.1994), cert... denied, - U.S. -, 115 S.Ct. 2286, 132 L.Ed.2d 288 (1995). We may also consider" }, { "docid": "23600474", "title": "", "text": "Rodgers, and when the three went to pick out the gun, Marcia paid for the gun with cash. When asked if she agreed with the statement presented by the AUSA, Woolley replied in the affirmative. From this, the district court could readily conclude that Woolley acted voluntarily and possessed the necessary intent to assist Martin in acquiring a handgun. . Ogden, 102 F.3d at 888. . Woolley's counsel on appeal is not the counsel who represented her at the entry of her plea of guilty. . See Cooke, 110 F.3d at 1299; United States v. Allender, 62 F.3d 909, 913 (7th Cir.1995), cert. denied, - U.S.-, 116 S.Ct. 781, 133 L.Ed.2d 732 (1996); United States v. South, 28 F.3d 619, 629-30 (7th Cir.1994). One reason a defendant might opt to proceed with an ineffective assistance claim on direct appeal was suggested by this court in Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993): \"[T]he defendant might be confident that the ineffectiveness of the lawyer’s assistance was obvious from the transcript and might not think that the lawyer who had dis-served him (or anyone else) would have anything helpful to say at an evidentiary hearing.” Further, as the Guinan court noted, a litigant who chooses not to pursue an ineffectiveness claim on direct appeal runs the risk that he will be deemed to have waived the right to pursue the claim on collateral review, if the claim was not one which \"reasonably appeared,” at the time of the direct appeal, would require the «production of substantiating extrinsic evidence. Guinan, 6 F.3d at 472; see, e.g., McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir.1996) (\"Because [petitioner] offers no material extrinsic evidence in support of his ineffective assistance of counsel claim and he had different counsel on appeal, his is not the type of claim properly raised for the first time in a § 2255 motion.”). When ques tioned at oral argument, Woolley’s counsel stated that he opted to bring the ineffective assistance claims on direct appeal because the appeal waiver, by its terms, applied to § 2255 challenges" }, { "docid": "18690376", "title": "", "text": "a claim of ineffective assistance on direct appeal might be foolhardy — and possibly itself ineffective — if the argument is a “dead-bang winner.” But raising the issue on direct appeal presents its own perils because the argument must rest solely on the trial court record, which often offers little insight into counsel’s decision-making process. See United States v. Penass, 997 F.2d 1227, 1229 (7th Cir.1993); United States v. Taglia, 922 F.2d 413, 417 (7th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). Thus, as we observed in United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993), “a defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose.” Ineffective assistance claims almost always fail on direct appeal because we grant every indulgence “to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight.” Taglia, 922 F.2d at 417-18; see also Penass, 997 F.2d at 1229. In order to overcome this presumption of effective assistance, a criminal defendant often must supplement the record with extrinsic evidence that illuminates the attorney’s errors. Otherwise, “counsel’s apparent pratfalls [are] presumed to be failed stratagems rather than professional malpractice.” Taglia, 922 F.2d at 418. For that reason, a defendant who must supplement the trial record to support his ineffectiveness claim “will be well advised to wait till the postconviction stage and will be safe in doing so.” Id. at 419; see also Davenport, 986 F.2d at 1050. If the defendant has no extrinsic evidence that would support his claim, however, then Taglia requires that he raise the claim on direct appeal or lose it, for a defendant “must make his ineffective assistance claim at the earliest feasible opportunity.” Taglia, 922 F.2d at 418-19. Only if there is a need to embellish the picture of trial counsel’s performance with extrinsic evidence will we excuse the failure to raise the claim on direct appeal. Id.; see also Davenport, 986 F.2d at 1050. Here, the district court found that Bond’s" }, { "docid": "23470874", "title": "", "text": "counsel claim rests on extrinsic evidence, he may bring his claim in a § 2255 motion rather than on direct appeal, and (2) his appellate counsel was constitutionally ineffective when he failed to raise the two claims on direct appeal. 1 This circuit, as well as many of our sister circuits, has held that most claims of ineffective assistance of trial counsel are properly raised for the first time in a § 2255 motion rather than on direct appeal. See Bond, 1 F.3d at 634; United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991); see also United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir.1993); United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1544, 128 L.Ed.2d 196 (1994); United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir.1994); United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991); United States v. Goodlett, 3 F.3d 976, 980 (6th Cir.1993); United States v. Jennings, 12 F.3d 836, 840 (8th Cir.1994); United States v. Simas, 937 F.2d 459, 463 (9th Cir.1991); Beaulieu v. United States, 930 F.2d 805, 806-07 (10th Cir.1991); United States v. Gholston, 932 F.2d 904, 905 (11th Cir.1991). As we discussed in Bond, the justification for allowing claims of ineffective assistance of counsel to be raised for the first time in § 2255 motions is that, in order to be successful, such claims generally require that the record be supplemented with “extrinsic evidence that ilhiminates the attorney’s errors.” 1 F.3d at 635. A § 2255 proceeding offers defendants the opportunity to supplement the reeord with additional evidence. If we required defendants to raise all such claims on direct appeal, we would be limited to only the trial record. Another, unrelated circumstance that justifies raising a claim of ineffective assistance of trial counsel for the first time in a § 2255 motion is where trial counsel was also appellate counsel because he “can hardly be expected to challenge on appeal his own ineffectiveness at trial.” Taglia, 922 F.2d" }, { "docid": "3860062", "title": "", "text": "to get the one kilogram package. Viewing the evidence as a whole and in the light most favorable to the government, a jury could easily have found that Young knowingly participated in the conspiracy and that he took sübstantial steps towards possessing the cocaine he and Traylor intended to distribute. D. Ineffective Assistance of Counsel Young’s final argument on appeal is that his trial counsel was constitutionally ineffective. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1986). In his post-trial pro se motion for a new trial, Young complained that his attorney was unprepared because he faded to obtain certain tapes and transcripts before trial. The district court rejected Young’s claim, stating that Young’s trial attorney “vigorously defended the case.” On appeal, Young does not challenge the district court’s disposition of his ineffective assistance claim. Instead, Young contends for the first time that his trial counsel was ineffective because he failed to call Anita Russell as a witness and failed to discover Traylor’s Mississippi criminal record. Young also insists that extrinsic evidence is necessary to develop these two claims and asks this Court to remand his new claims to the district court for further development or to make clear that his allegations may later be pursued in a 28 U.S.C. § 2255 motion. This Court does not generally consider claims of ineffective assistance of counsel raised for the first time on direct appeal having held repeatedly that such claims are best dealt with at the district court level through a motion for a new trial or through the collateral relief available under 28 U.S.C. § 2255. United States v. Mojica, 984 F.2d 1426, 1452 (7th Cir.) (listing cases), cert. denied sub nom., — U.S. -, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993). Nevertheless, we may resolve ineffective assistance claims without the benefit of the district court’s views where the record is sufficiently developed or where both parties ask us to resolve the matter. Id. In this case, both parties have not requested that we resolve the claims. Furthermore, the record before us is not" }, { "docid": "5262456", "title": "", "text": "if we assume ar-guendo that counsel’s failure to seek a continuance was in some way deficient, the defendant has made no attempt whatsoever to demonstrate any resulting prejudice — most likely because, as our review of the record suggests, there was none. Cf. United States v. Ashimi, 932 F.2d 643, 650 (7th Cir.1991) (stating that self-serving speculation about testimony of putative witness is not enough to show how counsel’s failure to obtain testimony was ineffective). Conclusion For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. . A defendant who raises an ineffectiveness claim on direct appeal without supplementing the record faces an even more arduous task, for without such evidence a seeming lapse or error by counsel will be presumed a tactical move \" ‘flawed only in hindsight.’ ” United States v. Ashimi, 932 F.2d 643, 648 (7th Cir.1991) (quoting United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991)). Because evidence outside of the record will ordinarily be required to demonstrate the deficiency in counsel's performance, Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993), we are generally reluctant to consider claims of ineffective assistance of counsel raised for the first time on appeal. Because an appellate court does not hear evidence, but rather is restricted by the record before it, Ashimi, 932 F.2d at 648, the most the defendant can hope for on appeal is an opportunity to enlarge the record on remand. United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993). However, if nothing could be gained through evidentiary inquiry that is not already contained in the trial record, the defendant is required to raise the claim on direct appeal or forfeit it. See Guinan, 6 F.3d at 471; Taglia, 922 F.2d at 418; see also Dugan v. United States, 18 F.3d 460, 464 (7th Cir.1994); United States v. Kamel, 965 F.2d 484, 495 n. 28 (7th Cir.1992). Thus, if the challenge to counsel’s assistance is sufficiently clear-cut and can be conclusively determined from the trial record, we will" }, { "docid": "2436768", "title": "", "text": "to assist in his defense. B. Ineffective Assistance of Counsel The reason he lost his request for a hearing under § 4241(a), argues Petros, is the incompeteney of his attorney. Based on* that belief, Petros asserts (for the first time on appeal) that his trial counsel so incompetently handled the § 4241(a) motion as to deny him his Sixth Amendment right to counsel. Because the district court has the opportunity to observe an attorney’s conduct and serves as the best forum in which to develop a factual record relevant to an ineffective assistance claim, these claims are ordinarily best brought first in the district court, either as a motion for a new trial or in a collateral proceeding following conviction. United, States v. Levine, 5 F.3d 1100, 1108 (7th Cir.1993); United States v. Mojica, 984 F.2d 1426, 1452 (7th Cir.), cert. denied sub nom,. Castaneda v. United States, — U.S. -, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993). If a sufficient evidentiary record of the perceived incompetent conduct already exists, and the defendant is willing to rest his claim on that record rather than take the opportunity to present evidence to the trial court, the court of appeals need not defer to the lower court and refuse to entertain the ineffective assistance claim because the appellate court then stands in as good a position as the trial court to resolve the issue. See Mojica, 984 F.2d at 1452; United States v. Asubonteng, 895 F.2d 424, 428 (7th Cir.), cert. denied sub nom. Rivers v. United States, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990). So while it may seem the defendant confronts the dilemma of either raising the ineffectiveness claim on direct appeal, and thereby relying solely on the trial record, or bringing the claim in the trial court with the concomitant possibly beneficial ability to present additional evidence supporting the ineffectiveness of the trial counsel, United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir.), cert. denied sub nom. McDonnell v. United States, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991), many of this court’s" }, { "docid": "22316221", "title": "", "text": "the record: for example, neglecting to call certain witnesses or introduce certain evidence. The claims might also be based on a conflict of interest not apparent at trial. Proof is sometimes provided in attorney-client correspondence, or in other documents not introduced at trial. Even if a new attorney represents the accused on direct appeal, she might not come across reasons to suspect ineffective assistance in preparing a direct appeal. See, e.g., United States v. Taglia, 922 F.2d 413, 418 (7th Cir.) C‘[I]n the usual case extrinsic evidence is necessary to prove that counsel’s assistance was ineffective, because without such evidence counsel’s apparent pratfalls will be presumed to be failed stra-tegems rather than professional malpractice.”), cert. denied, — U.S.-, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). For these reasons, other circuits have clearly established a preference for allowing ineffective assistance claims on § 2255 petitions rather than direct appeal. See United States v. Thompson, 972 F.2d 201, 203-04 (8th Cir.1992); United States v. Daniel, 956 F.2d 540, 543 (6th Cir.1992); United States v. McGill, 952 F.2d 16, 19 (1st Cir.1991); United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992); United States v. Mal, 942 F.2d 682, 689 (9th Cir.1991); United States v. Rieger, 942 F.2d 230, 235 (3d Cir.1991). We substantially agree that in most eases there is good reason to allow a defendant to make ineffective assistance claims on collateral attack even if those claims were not brought on direct appeal. We therefore join the other circuits in allowing petitioners in most cases to make those claims under § 2255, subject to the limitation discussed below. B. Limitation on the General Rule: Restricting Claims There are still some situations where a procedural bar to a § 2255 petition claiming ineffective assistance is appropriate. Some circuits have explicitly crafted a limitation on the general rule allowing such claims on collateral attack. This limitation generally applies where: (1) the petitioner was represented by new appellate counsel at direct appeal, and (2) the claim is based solely on the record" }, { "docid": "3324179", "title": "", "text": "should have known at the time any tactical choices were made and implemented. United States v. Natanel, 938 F.2d 302, 309 (1st Cir.1991); see also United States v. Georgacarakos, 988 F.2d 1289, 1298 (1st Cir.1993). It is well settled that an ineffective-assistance claim will not be entertained on direct appeal absent a sufficiently developed evidentiary record. See, e.g., United States v. Lopez-Pineda, 55 F.3d 693, 697 (1st Cir.1995); United States v. Jadusingh, 12 F.3d 1162, 1169 (1st Cir.1994). Instead, a collateral proceeding under 28 U.S.C. § 2255 is the appropriate vehicle for such an ineffective-assistance claim. United States v. Cofske, 157 F.3d 1, 2 (1st Cir.1998); United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st Cir.1994). Since the existing record does not enable reliable appellate review, we decline to consider the ineffective-assistance claim on direct appeal. C. Continuance Following a nine-month delay resulting from five previous continuances, on the first day of trial the district court denied a further request for continuance to permit Ademaj to obtain new counsel and conduct additional discovery. In response to an inquiry by the district court as to why he was requesting new counsel, Ademaj stated simply: “[H]e think I’m guilty.... He’s trying to cop me out.” When the district court asked what additional evidence he sought, Ademaj adverted vaguely to “my evidence.” See supra at p. 61. We accord “extraordinary deference” to trial court rulings on “last-minute” requests for a continuance. See United States v. Pierce, 60 F.3d 886, 891 (1st Cir.1995), cert. denied, 518 U.S. 1033, 116 S.Ct. 2580, 135 L.Ed.2d 1094. (1996). The instant challenge is frivolous. D. The Tape Transcripts At trial, the government called “Bob,” two DEA agents, a DEA drug analyst, and a Greek-language translator. The next day Ademaj filed a handwritten motion, titled “Object My Trial,” requesting an expert witness to translate the Greek conversations on the tapes. The motion was denied as untimely. While “Bob” was on the witness stand the government offered five tape-recorded conversations, four conducted primarily in Greek and another in English. “Bob” prepared English transcripts and Ademaj objected to their use. The" }, { "docid": "23470873", "title": "", "text": "can demonstrate either: (1) both good cause for his failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or (2) that the district court’s refusal to consider the claims would lead to a fundamental miscarriage of justice. Reed v. Farley, — U.S.-,-, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Dugan v. United States, 18 F.3d 460, 464 (7th Cir.1994) (quoting United States v. Kovic, 830 F.2d 680, 683 (7th Cir.1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988)); Bond v. United States, 1 F.3d 631, 634 (7th Cir. 1993). McCleese seeks to justify his procedural default only under the cause and prejudice test; he does not argue that the district court’s refusal to consider his claims would lead to a fundamental miscarriage of justice. McCleese offers two causes for his failure to assert the two claims in his direct appeal: (1) because his ineffective assistance of counsel claim rests on extrinsic evidence, he may bring his claim in a § 2255 motion rather than on direct appeal, and (2) his appellate counsel was constitutionally ineffective when he failed to raise the two claims on direct appeal. 1 This circuit, as well as many of our sister circuits, has held that most claims of ineffective assistance of trial counsel are properly raised for the first time in a § 2255 motion rather than on direct appeal. See Bond, 1 F.3d at 634; United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991); see also United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir.1993); United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1544, 128 L.Ed.2d 196 (1994); United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir.1994); United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991); United States v. Goodlett, 3 F.3d 976, 980 (6th Cir.1993); United States v. Jennings," }, { "docid": "3783932", "title": "", "text": "a constitutional issue on direct appeal bars raising it in a subsequent § 2255 motion unless the defendant can show cause for and actual prejudice resulting from the error of which he complained.” United States v. Kovic, 830 F.2d 680, 683 (7th Cir.1987) (footnote omitted), cert. denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988) (citing Norris v. United States, 687 F.2d 899 (7th Cir. 1982)). Dugan had separate trial and appellate attorneys, so there is no reason why Dugan’s appellate attorney could not have raised an ineffective assistance of trial counsel claim on Dugan’s direct appeal. Moreover, the particular factual bases for Dugan’s allegations of ineffective assistance — trial counsel’s alleged failure to object to alleged hearsay, failure to cross-examine, and so forth — could have been presented to and resolved by this court on direct appeal. Because Dugan failed to present his ineffective assistance of counsel claim at the earliest feasible opportunity, Dugan is procedurally barred from seeking relief under § 2255. See United States v. Taglia, 922 F.2d 413 (7th Cir.), cert. denied McDonnell v. United States, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). We agree with the trial judge’s ruling. III. Evidentiary Hearing Finally, Dugan contends the court committed error in denying his motion for an evidentiary hearing. We disagree, for as we have explained above, the record most eloquently displays that the movant, Dugan, was not entitled to relief, as there was no Brady violation and as Dugan could have, but did not, present his ineffective assistance of counsel claim on direct appeal. As we stated in Delgado, 936 F.2d at 309, “ ‘a judge should dismiss the petition without a hearing if it plainly appears from the facts of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief.’ Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir.1989) (quoting Rule 4(b) of the Rules Governing Section 2255 Proceedings).” An evidentiary hearing under the circumstances in this case would serve only to “overburden [the] judicial system [by addressing]" }, { "docid": "6983340", "title": "", "text": "such, the application of that maximum for career offender level purposes does not require that we vacate Gilliam’s sentence. D. Ineffective Assistance Of Counsel Before concluding, there is one final issue that we must touch upon. In his written submissions to this Court, Gilliam claimed that his trial counsel had rendered ineffective assistance by (1) failing to identify Gilliam’s prior criminal history before negotiating the plea agreement, and (2) advising his client to accept the plea agreement on erroneous information. Certain ly, Gilliam can raise an ineffective assistance of counsel claim on direct appeal. However, a decision to do so means that our inquiry would be confined to the facts that appear in the record as it now stands. See Godwin, 202 F.3d at 973. As we have noted, that is “a limitation that almost invariably dooms these claims when they are raised on direct appeal.” Id. When augmentation of the record is required, 28 U.S.C. § 2255 is the proper avenue for raising ineffective-assistance contentions. See Hugi v. United States, 1164 F.3d 378, 381 (7th Cir.1999). Recognizing that his ineffective assistance claims would be ben-efitted by evidence not presently contained in the record, at oral argument, Gilliam requested to withdraw these claims, thereby preserving them for a habeas proceeding. Thus, we will not examine the merits of those claims. See United States v. Alcantar, 83 F.3d 185, 191 (7th Cir.1996). III. CONCLUSION For the foregoing reasons, we Affirm the conviction and sentence imposed by the district court. . Pursuant to the agreement, Gilliam remained free to argue for further departures. . In Apprendi, the Supreme Court held that \"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted lo a juiy, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. The implication of Apprendi for defendants charged with drug offenses under 21 U.S.C. § 841(a) is that they may not be subjected to a statutorily enhanced sentence based on drug type and quantity, as provided in § 841(b), without those" }, { "docid": "23449743", "title": "", "text": "supra, 805 F.2d at 1289-90. Even then, unless the error is of constitutional magnitude, a federal court does not have the power to correct it in a proceeding brought under the habeas corpus statute (section 2254) or, we add today, its federal-prisoner substitute (section 2255). 2. Guinan claims that his trial counsel rendered ineffective assistance to him. This is a claim of constitutional error and can therefore be raised in a motion under section 2255. Some of the specific charges of professional misconduct are based entirely on the trial record, and as no reason for failing to present them to this court on direct appeal has been offered, they would, if standing alone (the significance of this qualification will be explained shortly), be deemed waived. United States v. Taglia, 922 F.2d 413, 418 (7th Cir.1991). The interest in finality of criminal proceedings requires the defendant to raise in his direct appeal all grounds for reversal that he could feasibly raise then. He may not hold some of them in reserve for collateral proceedings, giving him two or more bites at the apple. But this is in general, not in every case. If he was represented on appeal by the very lawyer who he now claims did not represent him effectively at the trial, then he could not as a practical matter have raised the ineffective assistance claim on direct appeal, so there is no forfeiture. Id.; Velarde v. United States, 972 F.2d 826, 827 (7th Cir.1992). Likewise if he seeks to demonstrate ineffective assistance by facts outside the record of the trial. Often, indeed usually, the effectiveness of a trial lawyer’s performance cannot be evaluated without an evidentiary hearing at which the lawyer is asked to explain why he did not follow seemingly promising lines of defense. Not always: the defendant might be confident that the ineffectiveness of the lawyer’s assistance was obvious from the transcript and might not think that the lawyer who had disserved him (or anyone else) would have anything helpful to say at an evidentiary hearing. But when such a hearing would be necessary or useful" }, { "docid": "6427581", "title": "", "text": "advisory opinion and remand to the district court for resentencing in light of the government’s change in position. III. Rector, a convicted felon, violated federal law when he possessed guns while trading them for cash and a ferret. He also violated federal law when he lied on federal forms related to gun purchases. He was not entitled to an entrapment by estoppel defense based on advice from a low-level state official because the state cannot so bind the federal government. Additionally, his reliance was not in good faith given that the advice was allegedly provided after he purchased the first rifle, that he advised a coworker to grind off a serial number so the gun could not be traced back to him, and that he lied on federal firearms forms. Nor did his federal prosecution constitute the elusive “sham prosecution.” Accordingly we affirm his conviction. The court’s denial of an acceptance of responsibility adjustment to Rector’s sentence was not clearly erroneous and is likewise affirmed. However, the government concedes error in Rector’s criminal history category calculation. Accordingly we remand for resentencing under the appropriate criminal history category. . While not the preferred route for such a claim, where the \"unadorned trial record” is sufficient to make such a determination, an appellant may allege ineffective assistance of counsel as grounds for reversal on direct appeal rather than through a motion for a new trial or under 28 U.S.C. § 2255. Compare United States v. Walls, 80 F.3d 238, 243 (7th Cir.1996) (\"We have cautioned repeatedly that appellants should not bring ineffective assistance claims on direct appeal. The record ... almost never is sufficient to reveal an attorney’s ineffectiveness.”) with United States v. Taglia, 922 F.2d 413, 417 (7th Cir.) (explaining where advancing such a claim on direct appeal is appropriate), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). . See, e.g., United States v. Etheridge, 932 F.2d 318, 322 (4th Cir.) (entrapment by estoppel instruction not appropriate where state trial judge erroneously informed convicted felon he could own guns for hunting purposes; to permit the defense \"would" }, { "docid": "17650787", "title": "", "text": "to a new trial. The first involves trial counsel’s representation at all stages of his numerous attempts to suppress the evidence based on the constitutionality of the checkpoint stop. The second involves trial counsel’s supposed failure to adequately cross-examine the government’s fingerprint expert. Before reaching the merits we briefly comment upon the difficulties in reviewing an ineffectiveness claim on direct appeal. Claims that an attorney was ineffective involve inquiries into the motivation behind an attorney’s trial strategies. This in turn requires facts which are usually not contained in the trial record. Without such facts trial counsel’s alleged lapses or errors will be presumed tactical moves, flawed only in hindsight. United States v. Fish, 34 F.3d 488, 491 n. 1 (7th Cir.1994); United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). What is more, in the event the defendant pursues his claim on direct appeal and it is rejected, our decision will be binding on the district court through the law of the ease doctrine, “leaving [defendant] with the unenviable task of convincing the district judge that he should disregard our previous ruling.” United States v. South, 28 F.3d 619, 629 (7th Cir.1994). That is why we have often cautioned that “a defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose.” Id. (quotations and citations omitted). We reminded Trevino’s appellate counsel of these matters at oral argument. He assured us that he was aware of the consequences of raising his claim at this time but wished to proceed nevertheless. Hence we will address the claim on direct appeal. Regardless of when it is made, because counsel is presumed effective, a party bears a heavy burden in making out a winning claim based on ineffective assistance of counsel. In order to succeed, the defendant must show that counsel’s performance fell below an objective standard of reasonableness and that this deficient performance so prejudiced his defense as to deprive him of a fair trial. Strickland v. Washington, 466" }, { "docid": "18871643", "title": "", "text": "U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986)). South’s first claim of error on the part of trial counsel was counsel’s failure to obtain a ruling from the district court on whether Zagheib was a coconspirator for purposes of Rule 801(d)(2)(E). This failure led to the admission of Zagheib’s testimony which, according to South, led to South being convicted on the basis of hearsay which, in turn, prevented South from obtaining a fair trial. Counsel’s second instance of substandard performance was agreeing to the government’s request that South’s trial counsel, during his examination of Zagheib, would not bring up the fact that Zagheib had HIV. Lastly, South claims that trial counsel’s characterization, during closing argument before the district judge, of South’s admission as a “confession” caused the district court to find South guilty on the basis of this characterization rather than on evidence establishing South’s guilt beyond a reasonable doubt. At oral argument, we questioned South’s attorney whether he truly wanted to challenge the effectiveness of trial counsel in this direct appeal. We expressed our concern that in making this challenge at this time, and not at a collateral proceeding under 28 U.S.C. § 2255, South was asking us to review a claim the factual basis for which was not contained in the unadorned trial record. See Bond v. United States, 1 F.3d 631, 635 (7th Cir.1993); see also Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993) (“Often, indeed usually, the effectiveness of a trial lawyer’s performance cannot be evaluated without an evidentiary hearing at which the lawyer is asked to explain why he did not follow seemingly promising lines of defense.”). We further reminded South that in the event he makes his claim on direct appeal and it is rejected, then that decision will be binding on the district court through law of the case, leaving South with the unenviable task of convincing the district judge that he should disregard our previous ruling. See United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d" }, { "docid": "15158821", "title": "", "text": "motion for new trial or a request for collateral relief under 28 U.S.C. § 2255. Boyles, 57 F.3d at 550; United States v. Mojica, 984 F.2d 1426, 1452 (7th Cir.), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993), - U.S.-, 115 S.Ct. 2633, 132 L.Ed.2d 873 (1995); United States v. Taglia, 922 F.2d 413, 417-19 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). We may, however, review the merits of such a claim when raised for the first time on direct appeal if the record is “sufficiently developed,” United States v. Asubonteng, 895 F.2d 424, 428 (7th Cir.), cert. denied, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990), or if the issue is “sufficiently clear-cut and can be conclusively determined from the trial record. ...” United States v. Fish, 34 F.3d 488, 491 n. 1 (7th Cir.1994); United States v. Zarnes, 33 F.3d 1454, 1473 (7th Cir.1994), cert... denied, - U.S. -, 115 S.Ct. 2286, 132 L.Ed.2d 288 (1995). We may also consider such claims if “both parties ask us to resolve the matter, the question has been briefed and argued, and the entire trial record is before us.” United States v. Reiswitz, 941 F.2d 488, 495 (7th Cir.1991). If, however, we do reach the merits and resolve them against Wiman, he will likely be barred from attempting to raise them again in any subsequent motion for collateral relief. Olmstead v. United States, 55 F.3d 316, 318-19 (7th Cir.1995); Taylor v. United States, 798 F.2d 271, 272-73 (7th Cir.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 983 (1987). It is not clear to us whether Wiman would like us to consider his ineffective assistance claim in this appeal on the present, limited record, or whether he has raised the issue only because it was part of his untimely motion for a new trial. Our efforts to discern whether Wiman truly wishes us to reach the merits in the absence of a developed record are hampered by the lack of a reply brief and the decision" }, { "docid": "22316220", "title": "", "text": "argument by Solicitor General that ineffective assistance claims are more properly brought in § 2255 petitions than on direct appeal). In many instances, an accused will be represented by the same counsel at trial and during direct appeal. In such eases, it would be unrealistic to expect that trial counsel would be eager to pursue an ineffective assistance claim. Moreover, even the scrupulous attorney searching the record in good faith would likely be blind to his derelictions at the trial level. Primarily, though, ineffective assistance claims are appropriately brought in § 2255 petitions even if overlooked on direct appeal because resolution of such claims often requires consideration of matters outside the record on direct appeal. See United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990) (pointing out that a claim for ineffective assistance must usually be made to the district court for factual findings, in order to develop a “full factual record”). Ineffective assistance claims are often based on assertions that trial counsel made errors of omission, errors that are difficult to perceive from the record: for example, neglecting to call certain witnesses or introduce certain evidence. The claims might also be based on a conflict of interest not apparent at trial. Proof is sometimes provided in attorney-client correspondence, or in other documents not introduced at trial. Even if a new attorney represents the accused on direct appeal, she might not come across reasons to suspect ineffective assistance in preparing a direct appeal. See, e.g., United States v. Taglia, 922 F.2d 413, 418 (7th Cir.) C‘[I]n the usual case extrinsic evidence is necessary to prove that counsel’s assistance was ineffective, because without such evidence counsel’s apparent pratfalls will be presumed to be failed stra-tegems rather than professional malpractice.”), cert. denied, — U.S.-, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). For these reasons, other circuits have clearly established a preference for allowing ineffective assistance claims on § 2255 petitions rather than direct appeal. See United States v. Thompson, 972 F.2d 201, 203-04 (8th Cir.1992); United States v. Daniel, 956 F.2d 540, 543 (6th Cir.1992); United States v. McGill, 952 F.2d" }, { "docid": "18871644", "title": "", "text": "We expressed our concern that in making this challenge at this time, and not at a collateral proceeding under 28 U.S.C. § 2255, South was asking us to review a claim the factual basis for which was not contained in the unadorned trial record. See Bond v. United States, 1 F.3d 631, 635 (7th Cir.1993); see also Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993) (“Often, indeed usually, the effectiveness of a trial lawyer’s performance cannot be evaluated without an evidentiary hearing at which the lawyer is asked to explain why he did not follow seemingly promising lines of defense.”). We further reminded South that in the event he makes his claim on direct appeal and it is rejected, then that decision will be binding on the district court through law of the case, leaving South with the unenviable task of convincing the district judge that he should disregard our previous ruling. See United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991); Page v. United States, 884 F.2d 300, 302 (7th Cir.1989); United States v. Mazak, 789 F.2d 580, 581 (7th Cir.1986). That is why we said in Bond that “‘a defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose.’ ” Bond, 1 F.3d at 635 (quoting United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993)). Nevertheless, South unequivocally stated that he wanted to raise this challenge on his direct appeal. The government also requested that we resolve the issue at this time. We will abide by the parties’ request. See United States v. Reiswitz, 941 F.2d 488, 495 (7th Cir.1991); see also Guinan, 6 F.3d at 472-73 (“[W]e do not ordinarily forbid an appellant to present an argument for reversal merely because the probability that the argument will be accepted is low. We are not so paternalistic. If the argument is made and rejected, ... the appellant must live with the consequences.”). In so doing, we will limit our review to" }, { "docid": "11425645", "title": "", "text": "in forfeiture only when the claim is based entirely on the trial record. Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993). Failure to raise an ineffective assistance of counsel claim on direct appeal will not result in forfeiture in the overwhelming majority of cases where a defendant wishes to demonstrate his counsel’s ineffectiveness by using evidence outside the trial record. As we have recognized, “[i]n the usual ease a criminal defendant will want to seek evidentiary support for his claim of ineffective assistance of counsel outside the trial record and will thus want to present the claim in a postconviction motion, as is his privilege.” Id. at 472 (citations omitted). Here, it is obvious that Stoia needed to bring forth evidence outside the record of the trial to have any chance of prevailing on his claim. For instance, Stoia needed to show that he retained Takiff to help prepare and participate in his defense. Stoia also needed to present evidence documenting Takiffs conflict of interest and showing how Takiff s conflict of interest adversely affected his defense at trial. This is precisely the type of evidence that does not appear in a trial record. Thus, Stoia’s decision to raise his ineffective assistance of counsel claim in a section 2255 petition, rather than on direct appeal, was not only proper, it was wise. See United States v. Taglia, 922 F.2d 413, 418 (7th Cir.1991) (A section 2255 petitioner is unlikely to “get to first base if he already has presented a claim of ineffective assistance of counsel to the court of appeals unsuccessfully.”); United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993) ( [A] defendant who presents his ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose.”). Stoia has not forfeited his claim. Appearance at Trial as Prerequisite to Sixth Amendment Relief First, we address the government’s assertion that Stoia’s Sixth Amendment right to effective assistance of counsel was not violated because Takiff did not file an appearance in the case or actually appear in court on Stoia’s behalf. The" } ]

[ { "docid": "22825322", "title": "", "text": "origin and is of a paranoid nature.” Pursuant to these findings and without a hearing, the appellant was given an involuntary leave of absence until January 31, 1970. In September of 1969, the appellant commenced a proceeding under Article 78 of the New York Civil Practice Law and Rules in the New York State Supreme Court, Kings County, challenging the authority of the Superintendent of Schools to place him on an involuntary leave of absence, and seeking to be reinstated as a teacher. The petition was dismissed on January 16, 1970, by Justice Feiden. In January and March of 1970, the appellant was called for further examination by physicians and psychologists to determine his fitness to return to duty. The panel recommended that the leave of absence be extended until June 30, 1970. On the other hand, while on medical leave of absence the appellant applied to the United States Department of Health, Education and Welfare for a disability allowance. HEW gave the appellant a special examination and received a report from a member of the Board of Education’s medical panel. On April 7, 1970, HEW, stating that Lombard was not unable to work at his normal occupation, denied his claim for a disability allowance. On April 20, 1970, pursuant to section 105a of the By-Laws of the Board of Education, a hearing was held before a Committee of the Superintendent of Schools concerning the appellant’s probationary status. At this hearing appellant presented written statements in his support, and several witnesses gave un-sworn oral testimony on his behalf. There was no testimony relative to appellant’s unfitness to teach, and the principal did not testify. The Committee had before it the reports by the principal and the recommendations of the physicians and psychologists who had examined the appellant. The Committee recommended that the probationary appointment be discontinued on the following five grounds: (1) Illogical and disoriented conversation, causing request for examination by the Medical Department, which found him unfit for duty. (2) Weakness in discipline and class control. (3) Incompetent and ineffective instructional performance. (4) Inattention to routine matters such as" } ]

[ { "docid": "120669", "title": "", "text": "JOHN 0. HENDERSON, Chief District Judge: The plaintiff in this action is a tenured school teacher who has been em ployed by the defendant school board as a physical education and health education instructor for the past fourteen years. On March 1, 1973 the principal of the Senior High School of Sweet Home Central School District, where plaintiff is employed, filed charges against plaintiff with the defendant school board pursuant to provisions of section 3020-a subd. 1 of the Education Law of the State of New York. Those charges allege that on three separate occasions the plaintiff administered excessive corporal punishment to high school students. On March 5, 1973 the school board, acting pursuant to the same statute, made a finding that probable cause existed to support the charges. Plaintiff was notified in writing of the charges and of his right to a hearing before a three-member panel. Plaintiff requested that such a hearing be held, but prior thereto he filed this action, praying for a judgment declaring sections 3012 and 3020-a of the Education Law unconstitutional. Since plaintiff further seeks a permanent injunction against the operation of the above statutes, a three-judge panel was convened to hear argument. Plaintiff’s challenge to the constitutionality of section 3012 is based upon a claim of vagueness and over-breadth. With respect to section 3020-a plaintiff contends that the procedures set forth therein for the removal of a tenured teacher constitute a deprivation of property without due process, a violation of the equal protection clause, and potential infringement of a teacher’s First Amendment rights. The court finds the equal protection and First Amendment claims to be improperly raised in this litigation. The plaintiff’s remaining contentions will be discussed in turn, together with the question of this court’s abstention, which was raised initially at oral argument. ABSTENTION In a proper case for abstention, the uncertainty in state law must be such that construction of the statute by a state court might obviate the need for decision of a federal constitutional question. Railroad Commission v. Pullman Co., 312 U.S. 495, 61 S.Ct. 643, 85 L.Ed. 971" }, { "docid": "2286959", "title": "", "text": "PER CURIAM: Appellant — Francine Newman is a tenured, licensed teacher with some 18 years’ experience in the New York City school system. As the result of a medical finding that she was psychologically “not fit at present for teaching duty,” appellant was placed on involuntary leave of absence without pay by the Board of Education from September 11, 1970, to June 30, 1971. On September 25, 1971, she was directed to resubmit to a mental examination and was again placed on involuntary medical leave without pay until June 30, 1972. Pursuant to Article 78 of the New York Civil Practice Laws and Rules, she filed a petition for review of these determinations in the New York Supreme Court, seeking: (a) to annul the original determination of unfitness; (b) to direct that her leave of absence not be counted against her accumulated sick leave; and (c) to require the Board to furnish her copies of all medical reports relied upon in its determinations. The state court denied her this relief, but concluded that the second determination of unfitness for school years 1971 — 72 was not based on the requisite medical findings and remanded the case to the Board for the formulation of an adequate record. The court ordered the Board to conduct another examination of appellant and to reconsider its determination in light of this re-examination and any medical reports of independent physicians submitted by appellant. Following denial of leave to appeal by the Appellate Division and Court of Appeals, Ms. Newman brought this suit for declaratory and injunctive relief under 42 U.S.C. § 1983, claiming that the Board had violated her right to procedural due process by not providing her an adversary proceeding. On February 15, 1974, the District Court granted the Board’s motion for summary judgment on the ground that the earlier state court decision was res judicata of the matter. At that time, the District Court did not have the benefit of the decision of this Circuit in Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), which was announced on July 22, 1974." }, { "docid": "18035169", "title": "", "text": "[on the basis of mental unfitness] may be effectuated, the employee is entitled to notice of the facts on which the employer’s determination is made and an adversarial-type hearing.”), and to Snead v. Department of Social Servs., 355 F.Supp. 764, 772 (S.D.N.Y.1973). While these cases strongly suggest that an adversarial hearing of some type should have been provided here, I need not and therefore do not reach that question. I am satisfied that even if a full adversary hearing was not required, the procedure afforded plaintiff was plainly inadequate to protect her constitutional rights. First of all, with respect to the fundamental question of adequate notice of proceedings before the Article II Psychiatric Board, the testimony of defendants’ own witness was that, generally, officers are advised of the date and time at which they must report by a roll call officer, and that no written notice is provided. The roll call officer is supposed to advise the subject that he or she may present documentary evidence at the hearing, but there is no procedure to guarantee that the message is properly relayed to the officer. Significantly, there is no policy with respect to a minimum notice period; an officer may get a month’s notice or just one day’s notice. Tr. at 941-46. Attorneys are not permitted to attend hearings before the Article II Psychiatric Board, but they are permitted to obtain copies of the subject’s medical records. No one outside of the Department is permitted to examine the P.A.15. I cannot conclude that these general procedures are sufficient to provide police officers with meaningful notice of the charges against which they must defend. Even assuming that an officer will somehow be adequately apprised of the charges against him or her, I find it difficult, if not impossible, to believe that the officer could prepare for a hearing before the Article II Psychiatric Board with a day’s, or even a week’s notice. When I consider this testimony in conjunction with the testimony of defendants’ witness, Deborah Zoland, who stated that it generally takes from three to six weeks for attorneys to" }, { "docid": "8524626", "title": "", "text": "assurance that he has been fairly treated. Although we hold that defendants must conduct an adversarial hearing before placing civil service employees in permanent status on involuntary leave of absence for mental unfitness in the absence of exceptional circumstances requiring immediate action, we do not prescribe the precise form such hearings must take. It is up to the state to determine which of the many potential formats it deems most appropriate. All that the Constitution requires is that before involuntary leaves of absence are effectuated,'which may continue for one year without pay, tenured civil service employees charged with a mental disability be granted a hearing containing the “rudimentary due process” necessary to the accurate determination of the validity of the allegation. This section 72 fails to do. Accordingly, section 72 of the New York Civil Service Law is declared unconstitutional and defendants are enjoined from taking any action thereunder. It is also ordered that plaintiff be reinstated with back pay for the period of her involuntary leave of absence. . N.Y.Civ.Serv. Law § 72 (McKinney’s Consol. Laws c. 7 Supp.1972). . 351 F.Supp. 1360 (S.D.N.Y.1972). . Pursuant to § 72(2), an employee placed on sick leave may, prior to the expiration of the year, apply to the appropriate civil service authority for an additional medical examination, and if found mentally fit to perform his duties, will be reinstated. . His action was predicated upon memoranda received from plaintiff’s supervisor which complained, among other matters, of plaintiff’s charges of bias and hostility toward her by her co-workers and superiors. . Plaintiff also alleges that § 72 was applied to her in a racially discriminatory manner and in retaliation for “negative opinions” voiced by her, and that the Department of Social Services failed to comply with the terms of the statute. In light of this court’s disposition of the attack against § 72 on its face, these claims need not be considered. See note 32 infra. . In addition, plaintiff contends that § 72 violates the equal protection clause because it treats allegedly mentally unfit civil service employees differently than civil service" }, { "docid": "18035168", "title": "", "text": "and appropriate procedural safeguards. The Court readily recognizes that due process is a flexible concept, and that various factors must be considered in determining which safeguards are necessary to protect against an unlawful deprivation in given circumstances. As correctly pointed out by defendants, due process does not necessarily mean a full adversary hearing, and it may, in some circumstances, be satisfied by informal proceedings. Traditionally, due process analysis focuses upon the kind of notice and hearing that are likely to establish the validity of the deprivation in question. There is authority in this circuit which suggests that a full adversary hearing might well be required in circumstances such as these. For example, the Second Circuit noted in Lombard, 502 F.2d at 637-38, that a serious constitutional question would arise if an administrative body made a finding of mental illness without giving its subject an “opportunity to meet the charge by confrontation in an adversary hearing.” I look also to Newman, 594 F.2d at 303-06, to Laurido, 489 F.Supp. at 1177-78 (“[B]efore ... an involuntary leave [on the basis of mental unfitness] may be effectuated, the employee is entitled to notice of the facts on which the employer’s determination is made and an adversarial-type hearing.”), and to Snead v. Department of Social Servs., 355 F.Supp. 764, 772 (S.D.N.Y.1973). While these cases strongly suggest that an adversarial hearing of some type should have been provided here, I need not and therefore do not reach that question. I am satisfied that even if a full adversary hearing was not required, the procedure afforded plaintiff was plainly inadequate to protect her constitutional rights. First of all, with respect to the fundamental question of adequate notice of proceedings before the Article II Psychiatric Board, the testimony of defendants’ own witness was that, generally, officers are advised of the date and time at which they must report by a roll call officer, and that no written notice is provided. The roll call officer is supposed to advise the subject that he or she may present documentary evidence at the hearing, but there is no procedure to" }, { "docid": "22825323", "title": "", "text": "the Board of Education’s medical panel. On April 7, 1970, HEW, stating that Lombard was not unable to work at his normal occupation, denied his claim for a disability allowance. On April 20, 1970, pursuant to section 105a of the By-Laws of the Board of Education, a hearing was held before a Committee of the Superintendent of Schools concerning the appellant’s probationary status. At this hearing appellant presented written statements in his support, and several witnesses gave un-sworn oral testimony on his behalf. There was no testimony relative to appellant’s unfitness to teach, and the principal did not testify. The Committee had before it the reports by the principal and the recommendations of the physicians and psychologists who had examined the appellant. The Committee recommended that the probationary appointment be discontinued on the following five grounds: (1) Illogical and disoriented conversation, causing request for examination by the Medical Department, which found him unfit for duty. (2) Weakness in discipline and class control. (3) Incompetent and ineffective instructional performance. (4) Inattention to routine matters such as keeping records of pupil attendance, admission or discharges. Poor relations with Supervisors and Teachers. (5) Violation of the By-Laws on Corporal Punishment. After Superintendent of Schools Irving Anker had approved the report, the applicable school board, Local School Board No. 23, adopted it on June 11, 1970, to become effective September 10, 1970. Following his dismissal as a probationary teacher, Lombard sought work with his substitute teacher’s license in a number of New York public schools. However, inasmuch as the Board of Education in its Special Circulars # 66 for 1971-1972 and # 89 for 1972-1973 directed school principals not to hire the appellant as a substitute teacher, he was unable to obtain continuous employment, and, indeed, several schools were forced to dismiss Lombard because of the Board’s circular. In June of 1971, Lombard commenced a second Article 78 proceeding in Supreme Court, Kings County, to review the termination of his probationary appointment and to seek reinstatement as a teacher. Justice Cowin denied the petition on June 27, 1972. The Appellate Division affirmed without opinion," }, { "docid": "6742727", "title": "", "text": "OPINION and ORDER PLATT, District Judge. Defendants have made an additional motion for an order pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure dismissing this action against the defendant Board of Education for lack of jurisdiction and for an order granting the defendants leave to amend their answer pursuant to Rule 15(a) of said Rules. The background and facts in this action are set forth in the opinion of the Circuit Court of Appeals (Gurfein, J.) reported at 502 F.2d 631 and will not be reiterated herein. The decisions of this Court on two prior motions made following the remand are reported at 400 F.Supp. 1361. Suffice it to say that Lombard was a probationary teacher in his second year at Public School 151 in Queens, New York, when the principal, the defendant Murphy, submitted a report to the Board recommending that his probationary appointment be discontinued and that he be directed to submit to a medical examination to determine his fitness to teach. In this report the defendant Murphy made statements enumerating various acts which Lombard charges were false, made in bad faith and in retaliation and revenge for certain things done by Lombard. In May of 1969 Lombard was examined by two staff physicians of the Board and in June of 1969 by a psychologist and was thereafter given an involuntary leave of absence until January of 1970. In the latter month and again in March of 1970 he was further examined and his leave of absence extended until June of 1970. On April 20, 1970, a hearing was held before a committee of the Superintendent of Schools concerning Lombard’s probationary status at which various witnesses gave unsworn oral testimony on his behalf and the committee had before it the reports by the principal and the recommendations of the physicians and psychologists. Following such hearing, the committee recommended that the probationary appointment be discontinued on the following five grounds: (1) Illogical and disoriented conversation, causing request for examination by the Medical Department, which found him unfit for duty. (2) Weakness in discipline and" }, { "docid": "5153390", "title": "", "text": "medical officer who examined the appellant under subdivision one or two in connection with the determination under appeal. If the commission finds that the determination appealed from is arbitrary or unreasonable, it shall direct the reinstatement of such employee. “4. If an employee placed on leave pursuant to this section is not reinstated within one year after the date of commencement of such leave, his employment status may be terminated in accordance with the provisions of section seventy-three of this article.” Civil Service Law, § 72 (McKinney 1973) (footnote omitted). The State authorities have not promulgated rules or regulations as to the procedures to be followed under § 72. See text accompanying notes 6 & 13, infra. . Affidavit of Thomas A. DiCerbo, Director of Agency Manpower Management of the Office of Public Health, Department of Health of the State of New York, at ¶ 5. See also Defendants’ Memorandum of January 12, 1979 at 2; Defendants’ Supplemental Memorandum of January 26, 1979 at 4. Plaintiffs counsel apparently does not dispute that Laurido had a drinking problem. . Plaintiff has submitted the affidavit of Dr. Pierino Graziosi, M. D., dated June 16, 1978 which states in pertinent part at ¶] 3: “On or about June 30, 1977, and December 16, 1977, I treated Pedro Laurido for minor physical complaints. On both occasions 1 found Mr. Laurido fully capable of understanding, reasoning, and answering all questions put to him. I further found Mr. Laurido fully capable of performing his duties as a porter at Helen Hayes Hospital.” . Complaint ¶ 14. . Id. ¶ 15 (emphasis original). . See Affidavit of Robert Forte, Attorney for the Defendants, dated January 12, 1979; Affidavit of Harvey Randall, dated January 8, 1979. Mr. Randall serves with the Office of the Counsel of the defendant New York State Civil Service Commission. . See Snead v. Department of Social Service, 351 F.Supp. 1360 (S.D.N.Y.1972) (granting motion for 3 judge court; denying motion for temporary injunction); Snead v. Department of Social Service of the City of New York, 355 F.Supp. 764 (S.D.N.Y.1973) (granting declaratory and injunctive relief" }, { "docid": "5153381", "title": "", "text": "“a hearing containing the ‘rudimentary due process’ necessary to the accurate determination of the validity of the allegation [of mental unfitness],” id., the Court declared § 72 unconstitutional; enjoined the defendants from taking any action under the statute; and ordered plaintiff’s reinstatement with back pay. Id. After the Supreme Court’s vacation of judgment and remand for reconsideration in light of Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), see 416 U.S. 977, 94 S.Ct. 2376, 40 L.Ed.2d 755 (1974), the Snead panel adhered to and reaf firmed its prior ruling, leaving it to the State to fashion appropriate procedures comporting with “rudimentary due process.” 389 F.Supp. 935, 937 (S.D.N.Y.1974) (per curiam). Subsequent developments in the Snead litigation, see note 7, supra, did not vitiate the panel’s essential holdings on the merits, which are not seriously challenged here, and I adopt those holdings in this case. I find that placing a permanent Civil Service employee on an involuntary leave of absence based on a finding of mental unfitness implicates liberty and property interests protected under the Due Process Clause of the 14th Amendment. Absent exceptional circumstances requiring immediate action, before such an involuntary leave may be effectuated, the employee is entitled to notice of the facts on which the employer’s determination is made and an adversarial-type hearing. Section 72 of the New York Civil Service Law, as written, fails to provide such minimal due process safeguards. Accordingly, the judgment to be entered herein will declare § 72 of the New York Civil Service Law unconstitutional; and will enjoin the defendants from taking any action thereunder. Although the Snead Court deferred to the State in the first instance to formulate appropriate procedures under § 72, some five years have now elapsed since the last Snead opinion and the State has taken no action to cure the statute’s constitutional infirmities. Regulations were proposed but never implemented, and curative legislation remains stalled in the Legislature. As is evident from the procedures used in effecting Laurido’s removal, due process has not been accorded on even an ad hoc basis. Because" }, { "docid": "18035167", "title": "", "text": "mental disability or unfitness imposes precisely the kind of stigma that implicates constitutionally-protected liberty interests. As the Court of Appeals for the Second Circuit has ruled, such a finding deprives an individual of his “reputation as a person ... presumably free from mental disorder,” and creates “a heavy burden for a young person to carry through life.” Lombard v. Board of Educ., 502 F.2d 631, 637 (2d Cir.1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975); see also Newman v. Board of Educ., 594 F.2d 299 (2d Cir.1979); Laurido v. Simon, 489 F.Supp. 1169, 1177 (S.D.N.Y.1980) (“[Placing a permanent Civil Service employee on an involuntary leave of absence based on a finding of mental unfitness implicates liberty ... interests protected under the Due Process Clause of the Fourteenth Amendment.”). I am fully satisfied, on the basis of these authorities, that Lenihan’s liberty interests are implicated in the action of the Article II Psychiatric Board, and the Board of Trustees of the Police Pension Fund. I therefore consider the issue of necessary and appropriate procedural safeguards. The Court readily recognizes that due process is a flexible concept, and that various factors must be considered in determining which safeguards are necessary to protect against an unlawful deprivation in given circumstances. As correctly pointed out by defendants, due process does not necessarily mean a full adversary hearing, and it may, in some circumstances, be satisfied by informal proceedings. Traditionally, due process analysis focuses upon the kind of notice and hearing that are likely to establish the validity of the deprivation in question. There is authority in this circuit which suggests that a full adversary hearing might well be required in circumstances such as these. For example, the Second Circuit noted in Lombard, 502 F.2d at 637-38, that a serious constitutional question would arise if an administrative body made a finding of mental illness without giving its subject an “opportunity to meet the charge by confrontation in an adversary hearing.” I look also to Newman, 594 F.2d at 303-06, to Laurido, 489 F.Supp. at 1177-78 (“[B]efore ... an involuntary leave" }, { "docid": "8755121", "title": "", "text": "90; Goldberg v. Kelly, supra, 397 U.S. at 261, 90 S.Ct. 1011. In light of the phrasing of the ordinance, questions may, and in this case did, arise whether the vehicle subject to the tow was in fact (1) on a public way, (2) in a state of disrepair rendering it incapable of being driven, or (3) not used for seven consecutive days. In situations where a vehicle in the requisite state of disrepair is towed immediately, the hearing should be held before the owner is required to pay any charges. Although we hold that a hearing must be conducted before one’s motor vehicle is towed as abandoned property, or after the impoundment if vehicles in a state of disrepair are towed immediately, we refrain from delineating the precise form such a hearing should assume. See Fuentes v. Shevin, supra, 407 U.S. at 96-97, 92 S.Ct. 1983; Bell v. Burson, supra, 402 U.S. at 542-543, 91 S.Ct. 1586; Snead v. Department of Social Services, 355 F.Supp. 764, 773 (S.D.N.Y.1973). The responsibility for choosing from the many available formats is more appropriately that of the governmental bodies involved. These hearings must be characterized, however, by the “rudimentary due process” necessary to an accurate judgment on the validity of the abandonment presumption. Fuentes v. Shevin, supra, 407 U.S. at 97, 92 S.Ct. 1983; Bell v. Burson, supra, 402 U.S. at 542, 91 S.Ct. 1586; Goldberg v. Kelly, supra, 397 U.S. at 267, 90 S.Ct. 1011; Sniadach v. Family Finance Corp., supra, 395 U.S. at 343, 89 S.Ct. 1820, 23 L.Ed.2d 349 (Harlan, J., concurring); Snead v. Department of Social Services, supra, 355 F. Supp. at 773. The Fee Requirement The statute and ordinance also run afoul of the Constitution in their requirement that towing and storage charges be paid as a precondition to the release of an abandoned vehicle, regardless of whether the owner has been charged with the misdemeanor of abandonment, or charged but acquitted. As demonstrated by this case, fees in excess of the maximum fine prescribed for a violation of the abandonment statute may have to be paid without" }, { "docid": "5153382", "title": "", "text": "property interests protected under the Due Process Clause of the 14th Amendment. Absent exceptional circumstances requiring immediate action, before such an involuntary leave may be effectuated, the employee is entitled to notice of the facts on which the employer’s determination is made and an adversarial-type hearing. Section 72 of the New York Civil Service Law, as written, fails to provide such minimal due process safeguards. Accordingly, the judgment to be entered herein will declare § 72 of the New York Civil Service Law unconstitutional; and will enjoin the defendants from taking any action thereunder. Although the Snead Court deferred to the State in the first instance to formulate appropriate procedures under § 72, some five years have now elapsed since the last Snead opinion and the State has taken no action to cure the statute’s constitutional infirmities. Regulations were proposed but never implemented, and curative legislation remains stalled in the Legislature. As is evident from the procedures used in effecting Laurido’s removal, due process has not been accorded on even an ad hoc basis. Because the time for judicial deference has now passed, the judgment will enjoin the defendants from placing any member of the certified class on involuntary leave of absence based on a finding of mental unfitness to perform the duties of his or her position unless prior thereto, absent exceptional circumstances, the following procedures are accorded the employee: 1. Written notice of the facts relied upon by the appointing authority to suggest that the employee is not mentally fit to perform the duties of his or her position, in advance of the employee’s examination by an Employee Health Services Unit physician. 2. Written notice of the Employee Health Services Unit physician’s findings. 3. Written notice of the appointing authority’s determination respecting involuntary leave, and the reasons and facts in support thereof. 4. Written notice of the employee’s right to appeal the appointing authority’s determination, and the procedures for perfecting such appeal. 5. Pre-hearing release to the employee or his or her authorized representative of the employee’s medical records and related data, upon written request of the employee," }, { "docid": "5153379", "title": "", "text": "is that § 72 gave him no real opportunity to contest the State’s determination that he was mentally unfit for his job. Whether one’s challenge to the State’s decision would be successful is immaterial in due process analysis; what is important is that one have the opportunity to make that challenge. Whatever the merits of defendants’ final argument that individual rather than common questions predominate with respect to those on § 72 leave, on the present record I am not prepared to certify a sub-class in respect of the question of retroactive relief. Plaintiff is not, however, bound by the defendants’ recitation of the operative facts. To the extent that class claims for reinstatement and back pay will be pressed, plaintiff’s counsel is entitled to test defendants’ assertions through discovery on this facet of the case, particularly where, as here, the information is peculiarly within the defendants’ possession and control. Accordingly, pending the completion of such discovery, I reserve decision on whether the action may be maintained as a class action, on behalf of present and former permanent New York State Civil Service employees who have been placed on involuntary § 72 leave, for the purposes of granting such persons reinstatement together with retroactive pay and other benefits. III. The merits aspect of this litigation does not require extended discussion. The State has all but conceded that § 72 as written, and as applied to Laurido, does not afford procedural due process. I am entirely in accord with the decision of District Judge Weinfeld, the late Judge Bryan, and Circuit Judge Mulligan in the Snead litigation. There, the panel held that invocation of the § 72 procedure implicated constitutionally protected interests in liberty and property, 355 F.Supp. at 770-71; and that the 14th Amendment required the State employer to “conduct an adversarial hearing before placing civil service employees in permanent status on involuntary leave of absence for mental unfitness in the absence of exceptional circumstances requiring immediate action . . .” Id. at 773. Because § 72 on its face, and as applied to the Snead plaintiff, failed to provide" }, { "docid": "8524611", "title": "", "text": "The thrust of plaintiff’s challenge to section 72 is that it authorizes civil service authorities to place employees in permanent civil service status on involuntary leaves of absence of up to one year, upon certification by a medical officer that they are mentally unfit to perform their duties without providing an adversary hearing prior to the effectuation of the enforced leave. She contends that the leave of absence deprived her of a constitutionally protected right to liberty and property which may not, consistent with the due process clause of the Fourteenth Amendment, be infringed without a prior due process hearing. Defendants respond that plaintiff was not deprived of any constitutionally protected interest and that even if she were, she was afforded all the process which is constitutionally required. They also raise procedural objections which, they contend, make it inappropriate for this court to reach the merits of the controversy at this time. Each of these questions must be examined in turn. EXHAUSTION Defendants urge that plaintiff should be required to exhaust the administrative remedy contained in section 72(3), which provides for an appeal to the state or municipal civil service commission having jurisdiction from the initial finding of mental unfitness or following a refusal to reinstate after a second medical examination. In a series of decisions over the last decade, however, the Supreme Court has held that exhaustion of administrative remedies is not required in cases brought under the Civil Rights Act. It is true that in Eisen v. Eastman, decided before Wilwording v. Swenson, the Supreme Court’s most recent pronouncement on the subject, a panel of our court of appeals read the prior cases as only eliminating the requirement of exhaustion of state administrative remedies where they are inadequate or resort to them would probably be futile. It is unnecessary to consider the vitality of Eisen in light of Wilwording, however, because the Eisen court emphasized the Supreme Court’s statement in King v. Smith that a Civil Rights Act plaintiff “is not required to exhaust administrative remedies, where the constitutional challenge is sufficiently substantial ... to require the convening" }, { "docid": "18817078", "title": "", "text": "a habeas corpus proceeding. M.H.L. § 15.15. See Woe, 408 F.Supp. at 427. The statute’s failure to comply with plaintiffs’ six-part criteria does not, however, invalidate the statute on substantive due process grounds. Procedural Due Process Claims Time Provisions Plaintiffs’ first and second procedural claims address the patient’s right to an adversarial hearing within a reasonable amount of time to determine the appropriateness of his commitment. The New York statute, plaintiffs argue, is rendered unconstitutional by its failure to require a probable cause hearing to be held within forty-eight hours of admission and to provide for automatic judicial review within five days. A hearing must be made available to an involuntarily committed patient within a reasonable time after confinement. Due process issues, however, should not be resolved “in terms of required days, hours, or minutes, but should rather turn on the basis of the interests involved and fundamental fairness.” French v. Blackburn, 428 F.Supp. 1351, 1355 (M.D.N.C.1977), aff’d per curiam, 443 U.S. 901, 99 S.Ct. 3091, 61 L.Ed.2d 869 (1979). New York’s procedures are not unconstitutional merely because they do not meet plaintiffs’ proposed time requirements. M.H.L. sets a sixty-day limit on involuntary confinement without judicial review, and a fifteen-day limit on emergency retention. Although due process “does not deal in magic numbers,” French, 428 F.Supp. at 1355, the New York provision may be at the outer edge of a constitutionally permissible length of time. See, e.g., Logan v. Arafeh, 346 F.Supp. 1265 (D.Conn.1972) (forty-five days), aff’d sub nom. Briggs v. Arafeh, 411 U.S. 911, 93 S.Ct. 1556, 36 L.Ed.2d 304 (1973). However, M.H.L. includes numerous other provisions which assure that the involuntarily committed are afforded repeated opportunities for review and release and, therefore, the statute complies with the due process “fundamental fairness” standard. See, e.g., French, 428 F.Supp. at 1355; Logan, 346 F.Supp. at 1271. Generally, two certificates from examining physicians, plus an examination by a staff physician, must all concur in the need for hospitalization before an involuntary admission may occur. An examination by a psychiatrist is required within seventy-two hours. Thus, any of four medical experts may" }, { "docid": "3739506", "title": "", "text": "Dr. Hanni’s report, the district court denied Dusanek’s motion for injunctive relief seeking reinstatement. II. Dusanek’s Claim of Denial of Due Process. Dusanek’s position as a tenured teacher was sufficient to create an entitlement to a property interest under the law of Illinois. Having created such an entitlement, the state could not deprive Dusanek of his position without first affording him due process. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). There is no question that the Board and its employees complied with the Board’s rules and the state statutes in their procedural treatment of Dusanek. We do not find this statutory and administrative procedure to be somehow arbitrary or unreasonable. There is nothing unconstitutional about a state establishing a tenure system in which the state retains the prerogative to discontinue the teaching duties of teachers who are not physically or mentally competent to continue teaching. In any such system, some school official must be lodged with the preliminary authority to request a medical investigatory procedure. The Illinois procedure whereby certain school authorities can require teachers who may have medical difficulties to submit to medical examinations obviously serves strong state interests. Only disabilities which impair the efficiency of a teacher may be the basis for requiring a health examination, and a health examination must be conducted before a teacher is asked to request a leave of absence. When the result of that medical examination is adverse to a teacher, the Illinois procedure permits the teacher either to request a medical leave of absence, or to fight his or her removal by refusing to take such a leave, thereby triggering rights to a hearing. The teacher is given the option of a hearing before any property interest is taken away. Certainly the facts in the record support Dr. O’Donnell’s conclusions and the principal’s original decision to commence the process that resulted in Dusanek’s medical examination. We are of the opinion that these procedures are all that Illinois need reasonably provide to" }, { "docid": "8524625", "title": "", "text": "doctor’s conclusions and present his own medical evidence. Our jurisprudence does not recognize the opinion of any individual expert as infallible; professional judgments concerning mental fitness are just as likely to differ as the observations of layman regarding simple issues of fact. The second argument pressed by defendants is that the traditional protections mandated by procedural due process are not required within the context of section 72 because the proceeding in question is of a benevolent rather than of an adversarial or prosecutorial na ture. To the extent that the employee wants to continue working and the employer wants to impose an involuntary leave of absence, however, the two have sharply divergent interests. In addition, it has never been held that procedural due process is only required to protect against the malevolent actions of those in authority. Regardless of the motivations of the civil service employer, the procedural protections guaranteed by the due process clause are necessary to assure the accuracy and fairness of the ultimate decision concerning mental fitness and to give the individual assurance that he has been fairly treated. Although we hold that defendants must conduct an adversarial hearing before placing civil service employees in permanent status on involuntary leave of absence for mental unfitness in the absence of exceptional circumstances requiring immediate action, we do not prescribe the precise form such hearings must take. It is up to the state to determine which of the many potential formats it deems most appropriate. All that the Constitution requires is that before involuntary leaves of absence are effectuated,'which may continue for one year without pay, tenured civil service employees charged with a mental disability be granted a hearing containing the “rudimentary due process” necessary to the accurate determination of the validity of the allegation. This section 72 fails to do. Accordingly, section 72 of the New York Civil Service Law is declared unconstitutional and defendants are enjoined from taking any action thereunder. It is also ordered that plaintiff be reinstated with back pay for the period of her involuntary leave of absence. . N.Y.Civ.Serv. Law § 72 (McKinney’s" }, { "docid": "3739507", "title": "", "text": "lodged with the preliminary authority to request a medical investigatory procedure. The Illinois procedure whereby certain school authorities can require teachers who may have medical difficulties to submit to medical examinations obviously serves strong state interests. Only disabilities which impair the efficiency of a teacher may be the basis for requiring a health examination, and a health examination must be conducted before a teacher is asked to request a leave of absence. When the result of that medical examination is adverse to a teacher, the Illinois procedure permits the teacher either to request a medical leave of absence, or to fight his or her removal by refusing to take such a leave, thereby triggering rights to a hearing. The teacher is given the option of a hearing before any property interest is taken away. Certainly the facts in the record support Dr. O’Donnell’s conclusions and the principal’s original decision to commence the process that resulted in Dusanek’s medical examination. We are of the opinion that these procedures are all that Illinois need reasonably provide to assure a fair and reasonable determination satisfying due process. Dusanek contends that the March 29 letter compelled him to take a leave of absence. 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. See, e.g., Palma v. Powers, 295 F.Supp. 924, 940 (N.D.Ill.1969); Marlowe v. Village of Wauconda, 91 Ill.App.3d 874, 883, 47 Ill.Dec. 655, 415 N.E.2d 660 (1981); Rawlings v. Illinois Department of Law Enforcement, 73 Ill.App.3d 267, 275, 29 Ill.Dec. 333, 391 N.E.2d 758 (1979); cf. Brooks v. Board of Trustees of the University of Illinois, 90 Ill.App.3d 591, 592, 46 Ill.Dec. 73, 413 N.E.2d 513 (1980). These decisions do not amount to a requirement of exhaustion of administrative remedies as a predicate to a section 1983 claim. Rather, they express the logical proposition that a state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them." }, { "docid": "8524610", "title": "", "text": "authority, an employee is not mentally fit to perform his duties, it may require the employee to submit to a medical examination by a medical officer selected by the state or municipal civil service authority having jurisdiction. If the examining medical officer certifies that the employee is not mentally fit to perform his duties, the appointing authority may place the employee on leave of absence without pay, which may continue up to one year. Sections 72(2) and 72(3) provide, respectively, for a second examination at the request of the employee after the imposition of the leave of absence and an appeal to the state or municipal civil service commission having jurisdiction. Plaintiff’s appointing officer invoked section 72 by ordering her to appear for a medical examination on May 8, 1972. The examining psychiatrist concluded that plaintiff was unfit to perform the duties of her employment and recommended that she be considered for medical leave of absence. Her appointing officer accepted this recommendation and on May 10 placed her on a one year leave of absence. The thrust of plaintiff’s challenge to section 72 is that it authorizes civil service authorities to place employees in permanent civil service status on involuntary leaves of absence of up to one year, upon certification by a medical officer that they are mentally unfit to perform their duties without providing an adversary hearing prior to the effectuation of the enforced leave. She contends that the leave of absence deprived her of a constitutionally protected right to liberty and property which may not, consistent with the due process clause of the Fourteenth Amendment, be infringed without a prior due process hearing. Defendants respond that plaintiff was not deprived of any constitutionally protected interest and that even if she were, she was afforded all the process which is constitutionally required. They also raise procedural objections which, they contend, make it inappropriate for this court to reach the merits of the controversy at this time. Each of these questions must be examined in turn. EXHAUSTION Defendants urge that plaintiff should be required to exhaust the administrative remedy contained" }, { "docid": "5153380", "title": "", "text": "and former permanent New York State Civil Service employees who have been placed on involuntary § 72 leave, for the purposes of granting such persons reinstatement together with retroactive pay and other benefits. III. The merits aspect of this litigation does not require extended discussion. The State has all but conceded that § 72 as written, and as applied to Laurido, does not afford procedural due process. I am entirely in accord with the decision of District Judge Weinfeld, the late Judge Bryan, and Circuit Judge Mulligan in the Snead litigation. There, the panel held that invocation of the § 72 procedure implicated constitutionally protected interests in liberty and property, 355 F.Supp. at 770-71; and that the 14th Amendment required the State employer to “conduct an adversarial hearing before placing civil service employees in permanent status on involuntary leave of absence for mental unfitness in the absence of exceptional circumstances requiring immediate action . . .” Id. at 773. Because § 72 on its face, and as applied to the Snead plaintiff, failed to provide “a hearing containing the ‘rudimentary due process’ necessary to the accurate determination of the validity of the allegation [of mental unfitness],” id., the Court declared § 72 unconstitutional; enjoined the defendants from taking any action under the statute; and ordered plaintiff’s reinstatement with back pay. Id. After the Supreme Court’s vacation of judgment and remand for reconsideration in light of Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), see 416 U.S. 977, 94 S.Ct. 2376, 40 L.Ed.2d 755 (1974), the Snead panel adhered to and reaf firmed its prior ruling, leaving it to the State to fashion appropriate procedures comporting with “rudimentary due process.” 389 F.Supp. 935, 937 (S.D.N.Y.1974) (per curiam). Subsequent developments in the Snead litigation, see note 7, supra, did not vitiate the panel’s essential holdings on the merits, which are not seriously challenged here, and I adopt those holdings in this case. I find that placing a permanent Civil Service employee on an involuntary leave of absence based on a finding of mental unfitness implicates liberty and" } ]

[ { "docid": "7848782", "title": "", "text": "at 206-07, 92 S.Ct. at 422, while the means of access between a dock and a vessel is considered an “appurtenance” of the vessel. Romero Reyes v. Marine Enterprises, Inc., 494 F.2d 866 (1st Cir.1974). It is well-established that maritime law encompasses the gangway. The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935); Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471 (1943); Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Tullis v. Fidelity & Cas. Co., 397 F.2d 22 (5th Cir.1968); O’Keeffe v. Atlantic Stevedoring Co., 354 F.2d 48 (5th Cir.1965). It is also well-established that a vessel owner has a “fundamental duty” to provide its crew members with a reasonably safe means of boarding and departing from the vessel. Massey v. Williams-McWilliams, Inc., 414 F.2d 675, 679 (5th Cir.1969), cert. denied, 396 U.S. 1037, 90 S.Ct. 682, 24 L.Ed.2d 681 (1970); Superior Oil Co. v. Trahan, 322 F.2d 234, 235 (5th Cir.1963). The question posed in the present case is whether a dock owner has a similar duty to crew members of a vessel using its facility. The vessel owner’s duty to provide a reasonably safe means of access arises from the doctrine of “seaworthiness.” Under general maritime law, a vessel owner has “an absolute nondelegable duty to provide a seaworthy vessel” to crew members. Brister v. A.W.I. Inc., 946 F.2d 350, 355 (5th Cir.1991). Unseaworthiness is “predicated without regard to fault or the use of due care.” Id., quoting Lee v. Pacific Far East Line, Inc., 566 F.2d 65, 67 (9th Cir.1977). It is well-settled, however, that the doctrine of “seaworthiness” is not applicable to a dock owner who does not occupy the position of owner or operator of the vessel. Daniels v. Florida Power & Light Company, 317 F.2d 41, 44 (5th Cir.), cert. denied, 375 U.S. 832, 84 S.Ct. 78,11 L.Ed.2d 63 (1963); Baker v. Raymond International, Inc., 656 F.2d 173, 181 (5th Cir.1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2256, 72 L.Ed.2d 861 (1982). Absent a maritime" } ]

[ { "docid": "14031892", "title": "", "text": "any event, in view of the. holding of the Supreme Court in Mitchell. We would then conclude that, in order to follow Mitchell, in the absence of the submission of some specific request for instructions based upon the proofs adduced by the parties in a particular case, a trial judge should instruct the jury that, where the claim is based upon an alleged temporary condition of unseaworthiness, they can find for the plaintiff on the issue of unseaworthiness only if they find that the temporary condition in fact existed, that it was the proximate cause of plaintiff’s injuries,, and that the shipowner had not furnished; and maintained a vessel and appurtenances reasonably fit for their intended use. And this is precisely what JudgeDimock did. His complete instructions-on the subjects of unseaworthiness and negligence follow: “First I will try to explain to you the term ‘unseaworthiness’. The owner of a vessel has an absolute duty to provide a seaworthy vessel. This means that the defendant was obligated to furnish and maintain-safe working conditions. Seaworthiness is reasonable fitness for the-particular voyage, or directed to the-present case, reasonable fitness for the particular uses which the plaintiff was making of the ship at the-time of his alleged injury. “In considering whether the vessel was unseaworthy due to the presence of grease on the steps of the-gangway, the following rules should! be followed: “A vessel is not unseaworthy by reason of a temporary condition, if even so the vessel was reasonably safe and suitable. In order to be-seaworthy, a vessel need not meet a standard of perfection. It need only be reasonably safe for the purpose-to which it is to be put. “If you do decide that the vessel’ was unseaworthy, then its liability is an absolute one. That is, it does-not depend upon any showing that the defendant or its employees knew or had reason to expect that grease-was on the steps of the gangway,, or that the defendant knew that the steps would be used when such grease was on there. You will remember that the plaintiff also claims-recovery on the ground that" }, { "docid": "5590447", "title": "", "text": "of the ship or its appurtenances and that there was no member of the crew of the ship directing the plaintiff nor having any control over the plaintiff or his activities at the time.” Were the vessel owner’s duty determined by ownership of the gangway, we would agree with the district court. It is undisputed that a smaller portable structure was the only structure in the nature of a gangway actually belonging to the barge, and it was not in use at the time of the accident. The apparatus from which plaintiff fell was the regular means of boarding and leaving the vessel. The seaworthiness warranty is not, however, limited to gear “owned” by the shipowner, and while the phrase “equipment appurtenant” to the vessel suggests equipment “belonging” physically to the vessel, it may, and in this case does, include equipment vital to the vessel’s mission that does not accompany it while at sea. “Seaworthiness” comprehends the owner’s duty to supply his crew with a suitable ship and equipment, and this includes providing them with a suitable means to board and disembark. The duty thus extends to the gangway by whomever supplied, owned or controlled. A crewman injured by an unfit hence “unseaworthy” gangplank may recover against the vessel’s owner. In Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), the Court spoke of the gangway as the dividing line between admiralty and state jurisdiction. Id. at 207, 92 S. Ct. 418. Respondent Law (a longshoreman injured on the pier) could not recover because he was not injured by the ship’s equipment, and because “the accident did not occur aboard ship or on the gangplank.” Id. at 214, 92 S.Ct. at 426. [Emphasis supplied.] Appellees argue that in Victory Carriers the Court might not have been thinking of pier-based ramps owned by others, nor of injuries to persons embarking rather than going ashore. Cf. The Brand, 29 F.2d 792 (D.Ore.1928), app. dismissed sub nom. Piper v. Knud-son, 45 F.2d 1017 (9th Cir. 1930). But see The Shangho, 88 F.2d 42 (9th Cir.), cert, denied," }, { "docid": "5509219", "title": "", "text": "any duty with respect to the gangway. Reyes explicitly recognized a claim of negligence against the vessel independent of the warranty of seaworthiness: Because the means of ingress or egress, by whomever furnished, are an “appurtenance” of the vessel, the owner has a duty of care regarding them. The owner is thus liable for a negligent failure to inspect a gangway and to warn against defects reasonably apparent from inspection or to take steps to repair or replace it. . We hold, therefore, that Romero Reyes was entitled to take his case to the jury on the issues of both unseaworthiness and negligence. 494 F.2d at 870. The Court of Appeals for the Ninth Circuit recently noted that “[ujnder the former law, some unsafe conditions which supported an unseaworthiness action might also have supported a negligence action.” Santos v. Scindia Steam Navigation Co., 598 F.2d 480, 485 (9th Cir.1979). The congressional committees therefore took care in their reports to head off the fear that the “abolition of the unseaworthiness action might lead some post-Amendment courts to conclude that if a set of facts would have amounted to unseaworthiness, Congress meant to preclude a recovery based on negligence.” Id. . These sections read as follows: § 343. Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. § 343A. Known or Obvious Dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge" }, { "docid": "5590442", "title": "", "text": "LEVIN H. CAMPBELL, Circuit Judge. Romero Reyes, a longshoreman, was injured when he slipped and fell from an allegedly unstable, poorly lit and defective gangway while boarding the CARIBBEAN, a barge owned by defendant Caribbean Barge Corporation. He sued the barge’s owner and an associated company for unseaworthiness and negligence. At the close of his evidence the court, upon defendants’ motion, directed a verdict on both counts for defendants, and he appealed. The court stated several reasons for directing a verdict. First, it noted that Romero Reyes was injured a half hour before his shift was to commence; the court intimated, although it did not actually say, that he was not then a longshoreman, engaged in the ship’s work, to whom the vessel owner’s warranty of seaworthiness runs. Second, the court ruled that the gangway, which was permanently affixed to a pier-based tower and did not belong to the barge, was not a part of the ship or its appurtenances; accordingly, the barge owner’s warranty of seaworthiness did not cover the gangway, nor, in the court’s estimation, was the owner negligent. As we disagree with the court’s conclusions on these issues, we remand for a new trial. I It could not be ruled as a matter of law that Romero Reyes was not a longshoreman when injured, hence not entitled to the warranty of seaworthiness. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) He testified to having worked since 1962 for Antilles Shipping Corp., which had been engaged as the CARIBBEAN’S stevedore; several co-workers confirmed that he was a regular Antilles longshoreman. A fellow longshoreman testified that Romero Reyes had worked on the CARIBBEAN the night before. Prior to the accident, Romero Reyes had gone to the pier from his home, intending to work the graveyard (11 p. m.-7 a. m.) shift on the CARIBBEAN shovel-ling grain. He had arrived at around 10:30, and attempted to speak to his foreman, Francisco Bastard, who was on the barge. Bastard, he testified, was his permanent foreman and gave him work whenever he showed up." }, { "docid": "5509207", "title": "", "text": "1251-52. Retained control was also the critical factual issue in Rich. See 596 F.2d at 550. As explained in. Griffith, the evidence in Rich “showed ‘beyond a doubt’ that the stevedoring company, rather than the vessel, was ‘in complete charge of the details of handling of the containers [on which the injury occurred].’ ” Griffith, 610 F.2d at 124 (quoting, with emphasis added, Rich, 596 F.2d at 557). In Hurst, some cables slipped off a hook at the end of a crane, operating without a safety catch, while the crane was being used to hoist cargo from the ship’s hold. The crane from which the hook was appended was land-based and was the means by which the ship was unloaded. Unloading the ship was the primary function of the stevedore, and the crane was an integral part of that operation over which the vessel owner had no control. In contrast, the gangway here was not in the exclusive control of the stevedore. Here, although the stevedore owned the gangway, the vessel owner did not surrender control over the manner in which the gangway was to be secured. Since the ship customarily retains that control, to posit a duty on the basis of it does not amount to reimposition of strict liability and the warranty of seaworthiness. As the trial judge concluded, sufficient evidence was adduced in this case to establish a duty on the part of the shipowner and crew to secure and maintain the gangway. Plaintiff’s expert, Captain David James, testified that good seamanship requires that the ship officers and crew make certain that the gangway is safely and firmly secured at all times and that a watch be posted in the gangway area as an additional safety precaution. Captain James’ testimony as to the duty of the crew of the vessel to secure and maintain the gangway equipment was corroborated by statements to the same effect by the ship’s captain and second officer, Captain Thalissimos. The verdict thus did not rest on an impermissible theory of unseaworthiness or respondeat superior, but on a theory of the vessel’s negligence" }, { "docid": "12546309", "title": "", "text": "judge will find the facts on the basis of the same record, and, bearing in mind the judge’s right to award new trials when a jury verdict is heavily against the weight of the evidence, a joint trial of all claims materially reduces the potential for inconsistent results. We would not reverse if the severance of the closely related claims into three separate trials was the only matter before us, for the avoidable harm is not readily reparable, but there was fatal error in the submission of the unseaworthiness claim to the jury in the trial of Russell’s claim against Interstate. There must be a retrial of that claim, and the related claims should be heard and decided in the same trial. The seaworthiness claim was submitted to the jury on the theory that the fuel flat was an appurtenance of the vessel Inca. Russell undertakes to support this submission on that theory. It is true, of course, that a vessel in navigation ordinarily warrants the seaworthiness of the means provided for members of its crew to board ánd to disembark. This warranty of means of ingress and egress includes a gangway by whomever owned or controlled when supplied for such a purpose. It has even been held that when one trawler ties up to the outboard side of another moored trawler, so that crewmen of the second must cross the first to reach the dock, the first trawler is comparable to a gangway and is within the general warranty of seaworthiness of the second. But a vessel’s warrant of seaworthiness does not extend beyond the gangway to the dock. The fuel flat involved here, however, was not a gangway; it was a part of the dock. It was floating, but more or less permanently moored to the shore, and it constituted the principal portion of the dock of City Ice at Point Pleasant, West Virginia. The fuel flat was capable of being detached from the shore and towed to deeper water for the fueling of deep draft vessels, but in its normal state it was firmly secured to the" }, { "docid": "18394071", "title": "", "text": "access. See Gay v. Barge 266, 915 F.2d 1007, 1012 (5th Cir.1990); Romero Reyes, 494 F.2d at 869; cf. Davis v. Partenreederei M.S. Normannia, 657 F.2d 1048, 1053 (9th Cir.1981) (holding that the vessel owner had a responsibility to correct the positioning of the gangway). The only difference between the ramp used by the plaintiff here and a gangway is that the ramp was not attached to the barge. The fact that the ramp did not extend to the barge, which presumably would have made it safer, should not preclude Scheuring’s lawsuit. Such logic would allow a barge owner to avoid liability by providing no means of access and effectively requiring harbor workers to swim to the barge. Accordingly, we conclude that there is a genuine issue of material fact involving the characterization of the ramp at issue here. The second issue before us concerns whether Traylor Brothers discharged its turnover duty by providing the ramp-float-skiff means of access. The vessel owner has only to exercise ordinary care in light of the fact that the operation will be conducted by “an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter.” Howlett, 512 U.S. at 98, 114 S.Ct. 2057. “This implies that certain dangers that may be hazardous to unskilled persons need not be remedied if an expert and experienced stevedore could safely work around them.” Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204, 1208 (9th Cir.1989). But, any hazardous condition must not constitute “an unreasonably dangerous work environment to experienced longshoremen exercising reasonable care.” Martinez v. Korea Shipping Corp., 903 F.2d 606, 610 (9th Cir.1990). We have previously affirmed grants of summary judgment where the plaintiff failed to act as an “expert and experienced stevedore.” In Bjaranson, we held that a bare boat charterer did not breach the duty of safe condition where “an expert and experienced stevedore could have safely conducted the cargo operation.” 873 F.2d at 1208. Similarly, in Ludwig v. Pan Ocean Shipping Co., 941 F.2d 849, 852 (9th Cir.1991) (per curiam), we held that the plaintiff could have avoided" }, { "docid": "863564", "title": "", "text": "use. We do not think that the gangway involved in this case falls into that category. Conceivably, there might be a case in which a special gangway, which is in addition to the ship’s regular gangway, is supplied by a stevedore for the exclusive use of its longshoremen in carrying out its cargo operation and which, therefore, might be regarded as wholly within the confines of that operation under the Scindia rule. But this is clearly not such a case. Here the stevedore, Hess, which was the owner of the marine terminal at which the ANDROS ATLAS was unloading, required all vessels unloading at its terminal to use only gangways supplied by it, the stevedore. Accordingly, here the gangway supplied by the stevedore became the vessel’s gangway in the sense that it was the only gangway available to the vessel. It was, therefore, necessarily used for embarking and disembarking by the officers and crew of the vessel and any others having business on her as well as by the longshoremen. It thus became, when put in place, a basic appurtenance of the vessel, its means of access to the land. The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935). We are, accordingly, satisfied that Scindia does not require us to depart from our original conclusion, which we reaffirm, that Oceanic had the duty to exercise reasonable care with respect to the gangway’s being properly secured to the vessel and maintained in safe condition for use. From this duty of care it could not divest itself even though the gangway was supplied by the stevedore, Hess, and at the time of the accident was being used by no one but the injured longshoreman. Romero Reyes v. Marine Enterprises, Inc., 494 F.2d 866, 870 (1st Cir. 1974). Oceanic argues in its brief on remand that under Scindia a shipowner’s ordinary duty of care may be modified by contract and that in its “contractual undertaking with Oceanic, Hess obligated itself to . . . furnish, secure, maintain and monitor the gangway to be used on Oceanic’s vessel.” We are" }, { "docid": "5509218", "title": "", "text": "not challenge this reduction for negligence attributed to his own fault. Cf. Rich v. United States Lines, Inc., 596 F.2d 541, 565 & nn.32-33 (3d Cir. 1979) (Garth, X, concurring) (suggesting applicability of comparative negligence doctrine); H.R.Rep.No.92-1441, 92nd Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 4698, 4705 ([T]he Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employer’s own negligence may have contributed to causing the injury.”) . Prior to the 1972 Amendments, courts had established a vessel’s absolute duty of care with regard to the gangway because, as part of the vessel, it was covered in the warranty of seaworthiness. See e.g., Russell v. City Ice & Fuel Co., 539 F.2d 1318, 1320 n.2 (4th Cir.1976) (citing cases); Reyes v. Marine Enterprises, Inc., 494 F.2d 866, 869 (1st Cir.1974) (decided before 1972 amendments were applicable). The abolition of the strict liability concept of seaworthiness, however, does not necessarily import the elimination of any duty with respect to the gangway. Reyes explicitly recognized a claim of negligence against the vessel independent of the warranty of seaworthiness: Because the means of ingress or egress, by whomever furnished, are an “appurtenance” of the vessel, the owner has a duty of care regarding them. The owner is thus liable for a negligent failure to inspect a gangway and to warn against defects reasonably apparent from inspection or to take steps to repair or replace it. . We hold, therefore, that Romero Reyes was entitled to take his case to the jury on the issues of both unseaworthiness and negligence. 494 F.2d at 870. The Court of Appeals for the Ninth Circuit recently noted that “[ujnder the former law, some unsafe conditions which supported an unseaworthiness action might also have supported a negligence action.” Santos v. Scindia Steam Navigation Co., 598 F.2d 480, 485 (9th Cir.1979). The congressional committees therefore took care in their reports to head off the fear that the “abolition of the unseaworthiness action might lead some post-Amendment courts" }, { "docid": "5590446", "title": "", "text": "he waived their benefits. Cf. F.R.Civ.P. 15(b). The presumption is rather the other way. Defendants must be held to the position they freely adopted prior to trial. If they had cause for relief, they should have moved to amend, thereby forewarning Romero Reyes, who was otherwise entitled to suppose that he had no burden to prove employment. The spirit of flexibility behind the Rules is not intended to permit one of the parties to be booby-trapped. Defendants shall remain bound by admissions in the pleadings and pre-trial stipulation unless the district court is later persuaded, for good cause shown, that they should be relieved. II The gangway from which Romero Reyes fell was owned and controlled by a concern we shall call Molinos. It did not belong to the barge or its owner. Suspended from a tower on pilings next to the dock, it could be raised or lowered by cables attached to the tower. The court concluded that the injury was caused by “pierside equipment attached to the pier based structure and not part of the ship or its appurtenances and that there was no member of the crew of the ship directing the plaintiff nor having any control over the plaintiff or his activities at the time.” Were the vessel owner’s duty determined by ownership of the gangway, we would agree with the district court. It is undisputed that a smaller portable structure was the only structure in the nature of a gangway actually belonging to the barge, and it was not in use at the time of the accident. The apparatus from which plaintiff fell was the regular means of boarding and leaving the vessel. The seaworthiness warranty is not, however, limited to gear “owned” by the shipowner, and while the phrase “equipment appurtenant” to the vessel suggests equipment “belonging” physically to the vessel, it may, and in this case does, include equipment vital to the vessel’s mission that does not accompany it while at sea. “Seaworthiness” comprehends the owner’s duty to supply his crew with a suitable ship and equipment, and this includes providing them with" }, { "docid": "5590451", "title": "", "text": "egress from the ship as part of the ship’s equipment.” Id. at 101. In Caldaro v. Baltimore & O.R.R., 166 F.Supp. 833 (E.D.N.Y.1956), a railroad worker was injured walking down a long gangway supplied “by the dock and were not part of the ship’s equipment.” Id. at 835. The court opted for a clear cut boundary rather than for “subtle arguments concerning the source or ownership of its component parts. Whether the gangway is kept on the shore or on the ship, it is used to provide ingress to and egress from the vessel and is in that sense a part of the ship’s equipment.” Id. at 836. Accord, West v. Erie R.R., 163 F.Supp. 879 (S.D.N.Y.1958); Job v. Erie R.R., 79 F.Supp. 698 (S.D.N.Y.1948). See Lunsford v. Bethlehem Steel Corp., 269 F.Supp. 570 (D.Md.1967); Olsen v. Is-brandtsen Co., 209 F.Supp. 6 (S.D.N.Y. 1962). In a case decided since Victory Carriers, it has been held that the warranty of seaworthiness attaches to a catwalk permanently affixéd to the pier because it “was an integral part of the equipment used in getting on and off” the ship. Kearney v. Savannah Foods & Indus., Inc., 350 F.Supp. 85, 90 (S.D. Ga.1972). In view of the foregoing, our views on the negligence claim may be of little practical significance; however, we state them, though with perhaps less certainty. Because the means of ingress or egress, by whomever furnished, are an “appurtenance” of the vessel, the owner has a duty of care regarding them. The owner is thus liable for a negligent failure to inspect a gangway and to warn against defects reasonably apparent from inspection or to take steps to repair or replace it. We finding nothing to the contrary in Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). Gf. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed. 2d 941 (1960); Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L. Ed.2d 413 (1959); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed." }, { "docid": "18394068", "title": "", "text": "114 S.Ct. 2057 (quoting Scindia, 451 U.S. at 167-68, 101 S.Ct. 1614) (citations omitted). The pres ent case concerns the turnover duty, of which there are two discrete duties — the duty of safe condition and the duty to warn. Thomas v. Newton Int’l Enterprises, 42 F.3d 1266,1268 (9th Cir.1994); Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204, 1207 (9th Cir.1989). For our purposes, we are most concerned with the duty of the owner to turn over the vessel in safe condition. In order to fulfill this duty: A vessel must “exercise ordinary care under the circumstances” to turn over the ship and its equipment and appliances “in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship’s service or otherwise, will be able by the exercise of ordinary care” to carry on cargo operations “with reasonable safety to persons and property.” Howlett, 612 U.S. at 98, 114 S.Ct. 2057 (quoting Fed. Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416-17 n. 18, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969)). In light of this duty to turn over the vessel in safe condition, the present case poses two issues. The first issue is whether the ramp is part of the William F’s “equipment and appliances.” Howlett, 512 U.S. at 98,114 S.Ct. 2057. The second issue is whether there is a genuine issue of material fact whether Traylor Brothers acted reasonably in fulfilling its turnover duty. In rejecting Scheuring’s LHWCA claim, the district court analogized the ramp to a dock or pier. Scheuring v. Traylor Bros., No. CV 03-06613-RZ, slip op. at 9 (C.D.Cal. Aug. 25, 2004). In opposition, the plaintiff asks us to view the ramp as a gangway. This distinction is critical since a gangway constitutes an appliance of a vessel but a dock or pier does not. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 207, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) (holding that a gangway is the dividing line between admiralty and state jurisdiction); see also" }, { "docid": "5800648", "title": "", "text": "498 F.2d 520, 523 n. 3 (9th Cir), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974))). Aside from its lack of authority in this circuit, the facts of Roberts are clearly distinguishable from those before us today. Roberts was a wrongful death action arising from the crash of a cargo plane in navigable waters short of the runway at Naha Airbase, Okinawa. Id. at 522. Furthermore, the Ninth Circuit clearly limited its holding to defining \"a 'maritime tort' in the aviation context,” a recurring issue in admiralty jurisdiction but not a question before us today. Id. at 523. . Thus, we lay to rest any notion that the rule of The Admiral Peoples extending admiralty jurisdiction to the gangplank is no longer good law following the enactment of the Extension Act in 1949. See Russell v. City Ice & Fuel Co., 539 F.2d 1318, 1320 & n. 2 (4th Cir.1976) (\"[t]his warranty of means of ingress and egress includes a gangway by whomever owned or controlled when supplied for such a purpose”); Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1306 (9th Cir.1970) (admiralty tort jurisdiction traditionally \"bounded by locality” now expanded by Extension Act); Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir.1993) (traditional maritime law encompasses the gangway), cert. denied, -U.S. -, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994); Romero Reyes v. Marine Enters., 494 F.2d 866, 869-70 (1st Cir.1974) (shipowner's duty of care extends to gangway); Tullis v. Fidelity & Casualty Co., 397 F.2d 22, 24 (5th Cir.1968) (citing The Admiral Peoples for the proposition that a \"gangplank is considered a part of the ship so that injuries which occur thereon are within admiralty jurisdiction”). . Because we find that the district court was properly vested with jurisdiction under traditional admiralty principles, we need not determine whether the district court properly rejected Extension Act jurisdiction by finding that a FOIA request does not satisfy the notice requirement of the Extension Act." }, { "docid": "18394070", "title": "", "text": "Romero Reyes v. Marine Enterprises, Inc. 494 F.2d 866, 870 (1st Cir.1974) (noting that “the authorities are virtually unanimous that maritime liability encompasses the gangway”). There is a genuine issue of material fact whether the ramp at issue in the present case is more like a gangway than a dock or pier. In order to board the barge, the plaintiff and the other individuals working aboard the William F had to use the ramp. There were no other means of embarking. Some of our sister circuits have held that a gangway or ramp which is “necessarily used for embarking and disembarking” becomes a “basic appurtenance of the vessel.” Sarauw v. Oceanic Navigation Corp., 655 F.2d 526, 528 (3d Cir.1981); see also Romero Reyes, 494 F.2d at 869 (holding that the apparatus which was the “regular means of boarding and leaving the vessel” was included in the seaworthiness warranty). Even if the ramp could not be fairly characterized as a gangway, the turnover duty, at a minimum, requires a vessel to provide a safe means of access. See Gay v. Barge 266, 915 F.2d 1007, 1012 (5th Cir.1990); Romero Reyes, 494 F.2d at 869; cf. Davis v. Partenreederei M.S. Normannia, 657 F.2d 1048, 1053 (9th Cir.1981) (holding that the vessel owner had a responsibility to correct the positioning of the gangway). The only difference between the ramp used by the plaintiff here and a gangway is that the ramp was not attached to the barge. The fact that the ramp did not extend to the barge, which presumably would have made it safer, should not preclude Scheuring’s lawsuit. Such logic would allow a barge owner to avoid liability by providing no means of access and effectively requiring harbor workers to swim to the barge. Accordingly, we conclude that there is a genuine issue of material fact involving the characterization of the ramp at issue here. The second issue before us concerns whether Traylor Brothers discharged its turnover duty by providing the ramp-float-skiff means of access. The vessel owner has only to exercise ordinary care in light of the fact that the" }, { "docid": "5590452", "title": "", "text": "of the equipment used in getting on and off” the ship. Kearney v. Savannah Foods & Indus., Inc., 350 F.Supp. 85, 90 (S.D. Ga.1972). In view of the foregoing, our views on the negligence claim may be of little practical significance; however, we state them, though with perhaps less certainty. Because the means of ingress or egress, by whomever furnished, are an “appurtenance” of the vessel, the owner has a duty of care regarding them. The owner is thus liable for a negligent failure to inspect a gangway and to warn against defects reasonably apparent from inspection or to take steps to repair or replace it. We finding nothing to the contrary in Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). Gf. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed. 2d 941 (1960); Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L. Ed.2d 413 (1959); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944). We hold, therefore, that Romero Reyes was entitled to take his case to the jury on the issues of both unseaworthiness and negligence. Reversed and remanded for a new trial. . Congress has recently provided that vessels no longer owe a duty of seaworthiness to longshoremen, and are liable solely for their negligence. Longshoremen’s and Harbor Workers Compensation Act Amendments of 1972, 86 Stat. 1263, amending 33 U.S.C. § 905 (1970). The amendment is prospective only, Addison v. Bulk Food Carriers, Inc., 489 F.2d 1041 (1st Cir. 1974), and does not apply to this case. . See also O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965). Cf. Continental Ins. Co. v. Byrne, 471 F.2d 257, 260 (7th Cir.), cert, denied 406 U.S. 918, 92 S. Ct. 1767, 32 L.Ed.2d 117 (1972). . It may, at first glance, seem harsh to hold the vessel owner for the fault of a shore-based operator. But the owner may often be entitled to indemnity, and may, of" }, { "docid": "18394069", "title": "", "text": "Co., 394 U.S. 404, 416-17 n. 18, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969)). In light of this duty to turn over the vessel in safe condition, the present case poses two issues. The first issue is whether the ramp is part of the William F’s “equipment and appliances.” Howlett, 512 U.S. at 98,114 S.Ct. 2057. The second issue is whether there is a genuine issue of material fact whether Traylor Brothers acted reasonably in fulfilling its turnover duty. In rejecting Scheuring’s LHWCA claim, the district court analogized the ramp to a dock or pier. Scheuring v. Traylor Bros., No. CV 03-06613-RZ, slip op. at 9 (C.D.Cal. Aug. 25, 2004). In opposition, the plaintiff asks us to view the ramp as a gangway. This distinction is critical since a gangway constitutes an appliance of a vessel but a dock or pier does not. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 207, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) (holding that a gangway is the dividing line between admiralty and state jurisdiction); see also Romero Reyes v. Marine Enterprises, Inc. 494 F.2d 866, 870 (1st Cir.1974) (noting that “the authorities are virtually unanimous that maritime liability encompasses the gangway”). There is a genuine issue of material fact whether the ramp at issue in the present case is more like a gangway than a dock or pier. In order to board the barge, the plaintiff and the other individuals working aboard the William F had to use the ramp. There were no other means of embarking. Some of our sister circuits have held that a gangway or ramp which is “necessarily used for embarking and disembarking” becomes a “basic appurtenance of the vessel.” Sarauw v. Oceanic Navigation Corp., 655 F.2d 526, 528 (3d Cir.1981); see also Romero Reyes, 494 F.2d at 869 (holding that the apparatus which was the “regular means of boarding and leaving the vessel” was included in the seaworthiness warranty). Even if the ramp could not be fairly characterized as a gangway, the turnover duty, at a minimum, requires a vessel to provide a safe means of" }, { "docid": "5590448", "title": "", "text": "a suitable means to board and disembark. The duty thus extends to the gangway by whomever supplied, owned or controlled. A crewman injured by an unfit hence “unseaworthy” gangplank may recover against the vessel’s owner. In Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), the Court spoke of the gangway as the dividing line between admiralty and state jurisdiction. Id. at 207, 92 S. Ct. 418. Respondent Law (a longshoreman injured on the pier) could not recover because he was not injured by the ship’s equipment, and because “the accident did not occur aboard ship or on the gangplank.” Id. at 214, 92 S.Ct. at 426. [Emphasis supplied.] Appellees argue that in Victory Carriers the Court might not have been thinking of pier-based ramps owned by others, nor of injuries to persons embarking rather than going ashore. Cf. The Brand, 29 F.2d 792 (D.Ore.1928), app. dismissed sub nom. Piper v. Knud-son, 45 F.2d 1017 (9th Cir. 1930). But see The Shangho, 88 F.2d 42 (9th Cir.), cert, denied, 301 U.S. 705, 57 S.Ct. 938, 81 L.Ed. 1359 (1937). However, it would be entirely impractical to make the existence of a maritime cause of action turn on such fortuitous distinctions; either the crew member is guaranteed a suitable means of ingress and egress to the vessel or he is not. There should not be the possibility of a different answer in every case. As the Court said in Victory Carriers, supra, 404 U.S. at 214 n. 14, 92 S.Ct. at 426, “Reliance upon the gangplank line as the presumptive boundary of admiralty jurisdiction, except for cases in which a ship’s appurtenance causes damage ashore, recognizes the traditional limitations of admiralty juris diction . . . and decreases the arbitrariness and uncertainties surrounding amorphous definitions.” The authorities are virtually unanimous that maritime liability encompasses the gangway. The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935); Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471 (1943); Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524," }, { "docid": "9373084", "title": "", "text": "same light as a common law employee of Arco, however, his work station was not the dock but the platform, so the Moore duty does not attach to Forrester’s disembarkation at the dock. The issue of whether Arco as owner/operator of the dock owed a duty of safe ingress and egress to Forrester is controlled by our decision in Florida Fuels, Inc. v. Citgo Petroleum, Corp., 6 F.3d 330 (5th Cir.1993). In Florida Fuels, the barge OSPREY berthed at a dock opined and operated by Citgo Petroleum Corp. (Citgo). Id. at 331. After securing the barge, Carl Authement was ascending a ladder to return to the barge when he fell and struck his head on the pier, and drowned. Id. Authement’s parents and children filed a maritime suit against Citgo. Id. The issue in Florida Fuels was whether Citgo owed a duty to Authement to provide a means of access between the dock and the vessel. Id. at 332. We concluded that maritime law imposed no duty on a dock owner to provide a means of access to a vessel for the vessel’s crew members. Id. at 334. We further concluded that the only duty established by Louisiana law was to provide a dock which was reasonably safe. Id. Because there was no defect in the dock itself, we ruled that Citgo did not breach its duty to maintain a reasonably safe premises as a matter of law. Id. Forrester’s argument that Arco, as the dock owner, owed him a duty of safe ingress/egress from the vessel to the dock is, therefore, meritless. The only duty that was owed to Forrester was the duty, under Louisiana law, for Arco to provide a dock which was reasonably safe. Here, the district court expressly found that the passengers did not wait long enough for a gangway to be put in place. Accordingly, there was no defect in the dock that caused the accident; rather, it was the hurried and undisciplined nature of the disembarking procedure—legally under the control of the vessel’s crew—that caused the problem. In addition, Forrester insists that Arco was" }, { "docid": "12546310", "title": "", "text": "crew to board ánd to disembark. This warranty of means of ingress and egress includes a gangway by whomever owned or controlled when supplied for such a purpose. It has even been held that when one trawler ties up to the outboard side of another moored trawler, so that crewmen of the second must cross the first to reach the dock, the first trawler is comparable to a gangway and is within the general warranty of seaworthiness of the second. But a vessel’s warrant of seaworthiness does not extend beyond the gangway to the dock. The fuel flat involved here, however, was not a gangway; it was a part of the dock. It was floating, but more or less permanently moored to the shore, and it constituted the principal portion of the dock of City Ice at Point Pleasant, West Virginia. The fuel flat was capable of being detached from the shore and towed to deeper water for the fueling of deep draft vessels, but in its normal state it was firmly secured to the shore, serving in every substantive way the functions of a dock and in no way those of a vessel in navigation. Comparable floating structures, more or less permanently moored to a dock and ordinarily used in connection with it, have been held to be portions of the dock. The fact that such structures are capable of being detached from the land and converted to temporary use as a vessel in navigation is undeterminative. As long as such a structure is securely affixed to the land and is in use as a component of shore facilities, it is not a vessel in navigation, but a dock beyond the reach of an adjacent vessel’s ordinary warranty of seaworthiness. Since, in addition to the Jones Act claim, the case was submitted to the jury on a theory of unseaworthiness under instructions which held the Inca responsible for any defect on the deck of the fuel flat, regardless of fault of the Inca, the general verdict for the plaintiff cannot be sustained. REVERSED AND REMANDED For Further Proceedings Not" }, { "docid": "863565", "title": "", "text": "in place, a basic appurtenance of the vessel, its means of access to the land. The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935). We are, accordingly, satisfied that Scindia does not require us to depart from our original conclusion, which we reaffirm, that Oceanic had the duty to exercise reasonable care with respect to the gangway’s being properly secured to the vessel and maintained in safe condition for use. From this duty of care it could not divest itself even though the gangway was supplied by the stevedore, Hess, and at the time of the accident was being used by no one but the injured longshoreman. Romero Reyes v. Marine Enterprises, Inc., 494 F.2d 866, 870 (1st Cir. 1974). Oceanic argues in its brief on remand that under Scindia a shipowner’s ordinary duty of care may be modified by contract and that in its “contractual undertaking with Oceanic, Hess obligated itself to . . . furnish, secure, maintain and monitor the gangway to be used on Oceanic’s vessel.” We are not convinced, however, that Scin-dia instructs that a shipowner may contract away its duty of care with respect to such an essential appurtenance of the ship as the gangway. Moreover, while there was evidence in the record that Hess instructed its personnel to monitor the safety of the gangways of the ships docked at its terminal, there was no evidence of an agreement under which Hess undertook to relieve the ANDROS ATLAS of its legal obligation concerning the gangway here involved. In the present case there was evidence from which the jury could find, as it did, that Oceanic failed in its duty of exercising due care to discover and correct the unsafe condition of the gangway which, obviously, became more and more critical as the vessel rose in the water during unloading. We remain satisfied, as we were when the case was here before, that the instructions fairly presented this issue to the jury and that Oceanic’s motion for judgment notwithstanding the verdict or for a new trial was properly denied. The other issues" } ]

[ { "docid": "21505262", "title": "", "text": "from their union, refused to work in Philadelphia at the Philadelphia scale of wages and hours and demanded the New York scale as to both. Hence this suit. The learned trial court refused an injunction restraining enforcement of these rules, basing its judgment on several decisions of state courts, notably the Court of Errors and. Appeals of New Jersey in New Jersey Painting Company v. Local No. 26 Brotherhood of Painters, 96 N. J. Eq. 632, 126 A. 399; the Superior Court of Rhode Island in George A. Douglas & Bro., Inc., v. Clarence Mallette et al., not reported; and the Court of Common Pleas No. 1, Philadelphia County, Pennsylvania, in H. Newton Marshal Company v. Brotherhood of Painters, etc., not reported. Opinions in these unreported eases were before us. Opposed to these three decisions by state courts are decisions of three courts of the United States — Hass v. Local Union No. 17 Brotherhood of Painters (D. C.) 300 F. 894; Barker Painting Company v. Brotherhood of Painters (Supreme Court of the District of Columbia), not reported; and Barker Painting Co. v. Local No. 734 (District Court for the District of New Jersey) not reported. All the cited state decisions are against injunctions; all the federal decisions favor injunctions. The learned trial court was inclined to the reasoning of the state decisions; and so are'we, not because the respondents have shown that the rules are lawful, but, rather, because the complainant has failed to show that they are unlawful. The theory on which the federal decisions were rendered is that the rules impose on the outside'contractor an unjust discrimination and, in consequence, inflict an injury on the public in that they operate unfairly to restrain trade. The theory on whieh the state cases were decided initially, and neeessarily, includes an admission that the rules work discrimination in some degree against the outside contractor, but it recognizes that it is not every discrimination that is unlawful. The courts in the latter eases restate what is now settled law, that employers have no vested interest in the labor of workers and" } ]

[ { "docid": "6892387", "title": "", "text": "RUNYON, District Judge. The complainant, Barker Painting Company, having its main office in New York City, is a corporation engaged in the painting industry, and for years has accepted and executed contracts in many localities situate throughout the eastern part of the United States. The defendant the Brotherhood of Painters, Decorators, and Paper Hangers of America is a national labor union composed of workers engaged in the various branches of the painting and paper-hanging industry, and as an organization is made up of local unions, approximately 1,250 in number, located in all sections of the United States and Canada. Local No. 734 is one of such local unions of the national Brotherhood, and represents the organized painters and decorators of the town of Somerville, N. J., and vicinity. George W. Hoffman and Harry S. Warren are, respectively, local business agent and general organizer connected with the Brotherhood. The situation confronting ‘ the court is the result of a contract secured by the complainant for the painting of the Somerset Hospital, at Somerville, N. J., and in the performance of which it was engaged when its workmen, who were all union men and receiving wages at the union rate obtaining in Bomerville and vicinity, were informed by local representatives of the Brotherhood that their continued work at that rate constituted a violation of the Brotherhood’s rules. In consequence of the information thus imparted, the members of Local No. 734, after making’demand for the rate contemplated in the rule and being refused, withdrew from their labors and progress was brought to a halt, a situation which continued until a temporary injunction against the defendants was obtained from this court, resulting in the resumption of work on the contract. The present application aims to secure eventually a final and authoritative ruling as to whether or not the defendants, as a. matter of public policy, are within their constitutional rights in attempting to enforce the rules which are here involved, by the imposition of penalties upon members for disobedience, to which system the members voluntarily submit themselves. In the year 1921, at its convention" }, { "docid": "6892389", "title": "", "text": "held at Dallas, Tex., the Brotherhood of Painters, Decorators, and Paper Hangers proposed an amendment to its constitution, which was subsequently ratified by the membership and incorporated in said constitution as section 62. This amendment, or rule, as it is called by the membership, reads as follows: “Where there is a difference between the wage scale of two cities all members employed upon a job done in one of the two cities by an employer from the other (whether sent from the city in which the employer’s place of business is situated or hired in the city where the work is done) shall receive the higher of the two wage scales.” This rule was supplemented by another rule, which provides that upon any job. done by an outside employer at least 50 per cent, of the employees engaged on such job shall be hired from the locality in which it is being performed. At the time the contract herein was made, the prevailing scale of painters’ wages in Somerville and vicinity was $8 for an eight-hour day, and in the city of New York $10.50 for an eight-hour day, and it was in view of the provisions of said rule above quoted, and because of the refusal of the complainant herein to pay the higher, or' New York,, rate, that the workers, who were practically all local men, members of 'Local 734, and coming from the vicinity of Somerville, discontinued their work. The present litigation is in all respects the counterpart of another action instituted in the Court of Chancery of New Jersey, wherein the New Jersey Painting Company was complainant and the present Brotherhood, its Local No. 26 of Newark, N. J., and others, were defendants (122 A. 622, 95 N. J. Eq. 108), and which action eventually reached and was disposed of by the New Jersey Court of Errors and Appeals (126 A. 399, 96 N. J. Eq. 632); the question at issue being in substance identical with the present one. The original hearing in said case was had before Vice Chancellor Backes, who decided that the strike" }, { "docid": "20345469", "title": "", "text": "contractor, except on terms that malee it difficult, if not impossible, for them to compete with local contractors. That no threats of force have been used is immaterial, for threats of fine and expulsion from the defendant union are just as effectual as threats of force, where, as here, expulsion would mean the loss by the person expelled of the opportunity to make a living at his trade. The injury thus inflicted on the outside contractor and the public cannot be justified, sinice no legitimate interest of the defendants would be furthered by the operation of the rule in question. It was clearly designed for the sole purpose of excluding outside competition in the home market on the part of outside contractors, and since the 'plaintiff has been injured by the operation of the rule he is entitled to an injunction enjoining the defendants from enforcing it. The same conclusion was recently reached by Vice Chancellor Backes in New Jersey Painting Co. v. Local Union No. 26, Brotherhood of Painters, Decorators, and Paper Hangers of America (N. J. Ch.) 122 Atl. 622, where the same rule was under consideration, as well as in Barker Paint Co. v. Brotherhood of Painters, Decorators, and Paper Hangers of America, Supreme Court, District of Columbia, decided April 8, 1924. The fact that, at the time the plaintiff entered into its contract with the Conde Nast Company, the rule in question was in force, is immaterial as it does not ap'pear that plaintiff knew of it. Besides, plaintiff’s right to relief is not dependent upon the existence of the contract. The injury to him consists in the discrimination against him in favor of local contractors, and this discrimination would exist equally in the absence of such a contract. The motion to dismiss is therefore denied. Ordered accordingly." }, { "docid": "458703", "title": "", "text": "law. The same questions run through both eases, as indeed they do in all the reported cases on the sub ject, whether decided on interlocutory or final decree. New Jersey Painting Co. v. Local No. 26, 95 N. J. Eq. 108, 122 A. 622, reversed 96 N. J. Eq. 632, 126 A. 399, 47 A. L. R. 384; Hass, Inc., v. Local Union No. 17 (D. C.) 300 F. 894; Marshall v. Brotherhood, Common Pleas, Philadelphia, not reported; Douglas & Bros., Inc., v. Mallette, Superior Court, Rhode Island, not reported; Barker Painting Co. v. Brotherhood (C. C. A.) 15 F.(2d) 16, certiorari denied 273 U. S. 748, 47 S. Ct. 449, 71 L. Ed. 871; Barker Painting Co. v. Brotherhood, 57 App. D. C. 322, 23 F.(2d) 743, certiorari denied 276 U. S. 631, 48 S. Ct. 324, 72 L. Ed. 741. While we should be more than satisfied to have this controversy between employer and organized labor finally decided by the higher court, we are constrained, until then, to stand by the decision which we made not casually but after serious study and, we confess, much mental disturbance. Aside from this position, we decline to take up the case on the merits because of another situation which counsel for the plaintiff was passing in silence when his attention was called to it from the bench and around-which counsel for the defendants trod lightly. It is this. The Barker Painting Company, a corporation of New York with its “home office” in New York City, had a contract for painting at Somerville, New‘Jersey. The job was about thirty per cent, completed when the defendant union called off its men by force of the offending rules which require a contractor to pay the wage rate of his home district or that of the locality of the work, whichever is higher. The Barker Company filed the bill in equity in this ease stating the facts and alleging unlawfulness of the rules because violative of sundry provisions of the federal constitution and federal laws. The trial judge issued a preliminary injunction, mandatory in character" }, { "docid": "14275106", "title": "", "text": "of both Wis-eombe and Wiseombe Southern. The first labor difficulties encountered by Wiseombe Southern were at Tulla-homa, Tennessee, with Local 456 of the Brotherhood. The negotiations were handled on behalf of Wiseombe Southern ostensibly by plaintiff but under explicit and detailed instructions from Leland M. Wiseombe. In May 1958, Wiseombe and Wiseombe Southern “as a joint-venture of the two corporations” contracted for painting on the Jackson Lock and Dam on the Warrior River at Coffeeville, Alabama. Work started on said joint-venture in July 1959. Arrangements for labor were made through Local 779 of the Brotherhood. Shortly after beginning work on the joint-venture, Wiseombe and Wiseombe Southern experienced labor difficulties in securing labor for the joint-venture and on August 26, 1959, they filed a suit, signed and sworn to by plaintiff, against the defendant Brotherhood of Painters, Decorators and Paper Hangers of America Local Union No. 779, Dulaney Parker, its business agent, and others, in the Circuit Court of Choctaw County in Equity, praying for an injunction and damages against said defendants by reason of said labor difficulties caused by them. In addition to said bill for injunction and damages, in October 1959 three charges were filed with the National Labor Relations Board against defendant Brotherhood of Painters, Decorators and Paper Hangers of America and defendant Brotherhood of Painters, Decorators, and Paper Hangers of America Local No. 779. The plaintiff appeared in said cases, “and testified fully, freely and truthfully by oral testimony or affidavit against the defendants named therein.” All of the labor negotiations pertaining to the joint-venture at Jackson Lock and Dam, the bill for injunction and the charges filed with the NLRB were handled by plaintiff under the direction, control and instructions of Leland M. Wis-eombe. Leland M. Wiseombe did thereafter falsely and maliciously represent to defendant Brotherhood at a joint meeting of the Union and an Association of Painting Contractors, known as Painting and Decorating Contractors of America, at LaFayette, Indiana, in November 1959, that the plaintiff had conducted the labor negotiations contrary to his orders and instructions and without his knowledge. The defendant Unions threatened Wis-eombe" }, { "docid": "7269289", "title": "", "text": "Mr. Justice Holmes delivered the opinion of the Court. For the purposes of the present decision this case maybe stated as it is stated by the Circuit Court of Appeals. “The Barker Painting Company, a corporation of New York with its home office in New York City, had a contract for painting at Somerville, New Jersey. The job was about thirty per cent completed when the defendant union called off its men by force of the offending rules which require a contractor to pay the wage rate of his home district or that of the locality of the work, whichever is higher. The Barker Company filed the bill in equity in this case stating the facts and alleging unlawfulness of the rules because violative of sundry provisions of the federal constitution and federal laws. The trial Judge issued a preliminary injunction, mandatory in character in that it restrained the workmen from observing the union rules and from not returning to work. All the men save one obeyed the injunction, returned to work and completed the job.” This happened before a decision upon the merits by the District Court, April 14, 1926, 12 F. (2d) 945, and a final decree dismissing the bill, March 23, 1928. The Circuit Court of Appeals, while intimating its probable adhesion to its former decision in a similar case, Barker Painting Co. v. Brotherhood of Painters, Decorators and Paperhangers of America, 15 F. (2d) 16, in accord with the decree below, declined to deal with the merits on the ground that it had become unnecessary to deal with them and for that reason affirmed the dismissal of the bill. 34 F. (2d) 3. Both sides desired that the Court should go farther afield. But a Court does all that its duty compels when it confines itself to the controversy before it. It cannot be required to go into general propositions or prophetic statements of how it is likely to act upon other possible or even probable issues that have not yet arisen. See Willing v. Chicago Auditorium Association, 277 U. S. 274. The controversy here was" }, { "docid": "23160262", "title": "", "text": "of Painters, 57 App. D. C. 322, 324, 23 F. 2d 743, 745, cert. denied, 276 U. S. 631 (1928) (It is “not unlawful for . . . unions to punish a member by fine, suspension, or expulsion for an infraction of the union rules, since membership in the union is purely voluntary”); Bayer v. Brotherhood of Painters, Decorators and Paperhangers of America, Local 301, 108 N. J. Eq. 257, 262, 154 A. 759, 761 (1931) (“association is a voluntary one, and the workmen may decline to become members or withdraw from membership, if dissatisfied with the conduct of its affairs”); Mische v. Kaminski, 127 Pa. Super. 66, 91-92, 193 A. 410, 421 (1937) (members “had a right to leave the union”); Longshore Printing Co. v. Howell, 26 Ore. 527, 540, 38 P. 547, 551 (1894) (“No resort can be had to compulsory methods of any kind either to increase, keep up, or retain such membership”). Our attention has not been called to any provision limiting the right to resign in a union constitution extant in 1947. Indeed, even by the 1970’s, very few unions had such restrictions in their constitutions. See Millan, Disciplinary Developments Under § 8(b)(1)(A) of the National Labor Relations Act, 20 Loyola L. Rev. 245, 269 (1974); Wellington, Union Fines and Workers’ Rights, 85 Yale L. J. 1022, 1042 (1976). In International Assn. of Machinists, Local 1414 (Neufeld Porsche-Audi, Inc.), a majority of the Board held that any restriction on the right to resign violates the Act. This was the position taken by Chairman Van de Water and Member Hunter in Machinists Local 1327 (Dalmo Victor II), 263 N. L. R. B. 984 (1982), enf. denied, 725 F. 2d 1212 (CA9 1984). See n. 5, supra. Section 8(a)(3), as set forth in 29 U. S. C. § 158(a)(3), provides: “It shall be an unfair labor practice for an employer— “(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other" }, { "docid": "21103679", "title": "", "text": "parties defendant, the attempted circumvention of the diversity requirement is as ineffective in the case at bar as it was in that of Underwood v. Maloney, supra. See International Allied Printing Trades Association v. Master Printers Union of New Jersey, D.C.N.J.1940, 34 F.Supp. 178; Stein v. Brotherhood of Painters, Decorators and Paper Hangers of America, D.C.N.J. 1950, 11 F.R.D. 153; Garfield Local 13- 566 Oil, Chemical and Atomic Workers Intern. Union, A.F.L.-C.I.O. v. Heyden Newport Chemical Corp., D.C.N.J.1959, 172 F.Supp. 230. Plaintiffs concede that, if suit is only against International, “the problem of non-diversity would be an insuperable one” but they rely on Supreme Tribe of Ben-Hur v. Cauble, 1921, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 as authority for the employment of the device of the class action for circumvention of the obstacle of non-diversity. That case was cited as a “perfect example of the true class action under Rule 23(a)(1)” in Lowry v. International Brotherhood of Boilermakers etc., 5 Cir., 1958, 259 F.2d 568, 574; but in the latter case the Court rejected “jurisdiction based on diversity over the unincorporated association as such as a party defendant since it appears that many members of defendant union are citizens of * * * the same (State) as is the plaintiff.” In the Ben-Hur case supra, the prior suit which was held to have been binding upon persons not made parties thereto was a true class action brought by less than all Class A members of the fraternal benefit association as representatives of all members of that Class to enforce a right common to all of them. Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, supra, cited by plaintiffs, is not apposite here. In that case, the District Court had originally overruled defendants’ motion to dismiss based on lack of service of process, but had dismissed the case for- lack of jurisdiction of the causes of action. The Court of Appeals, in 1944, 4 Cir., 140 F.2d 35, had affirmed the District Court’s dismissal upon the ground that it had derived no jurisdiction under the Railway Labor Act," }, { "docid": "6719482", "title": "", "text": "was to be performed and to hire a specified percentage of his men from the latter local. Rambusch Decorating Co. v. Brotherhood of Painters, etc., 105 F.2d 134 (2d Cir. 1939), cert. denied, 308 U.S. 587, 60 S.Ct. 110, 84 L.Ed. 492 (1939); Barker Painting Co. v. Brotherhood of Painters, etc., 57 App.D.C. 322, 23 F.2d 743 (1927), cert. denied, 276 U.S. 631, 48 S.Ct. 324, 72 L.Ed. 741 (1928); Barker Painting Co. v. Brotherhood of Painters etc., 15 F.2d 16 (3d Cir. 1926), cert. denied, 273 U.S. 748, 47 S.Ct. 449, 71 L.Ed. 871 (1927). The Second Circuit noted in Rambusch, supra, 105 F.2d at 138: « * * * Of course, the real point here relied on is the supposed discrimination between non-resident and resident contractors. Discrimination of this general kind is one of the most natural things in the world, applied by states and cities in civil service appointments; by courts in cost bonds and other burdens against non-residents; by merchants, customers, laborers, and servants in trusting and favoring the local man with whom they have long dealt and expect to deal in the future. * * ” 1 find no antitrust violation in the regulations here protecting local employment opportunities. XII. MONOPOLIZATION Plaintiffs’ claim that the defendant unions are attempting to or have monopolized the music industry boil down to the fact that the defendants are enforcing a closed shop. It is clear that this violates no antitrust law. United States v. AFM, supra; Courant v. International Photographers of Motion Picture Industry etc., 176 F.2d 1000 (9th Cir. 1949), cert. denied, 338 U.S. 943, 70 S.Ct. 429, 94 L.Ed. 581 (1950); Kolb v. Pacific Maritime Ass’n, 141 F.Supp. 264 (N.D.Cal.1956). In conclusion I find that defendants have violated no antitrust law. The complaints also allege the existence of a common-law restraint of trade. I find this charge to be equally without substance. Although the defendants have successfully defended this suit, they are not entitled to attorneys’ fees. 15 U.S.C. § 15; Talon, Inc. v. Union Slide Fastener, Inc., 266 F.2d 731, 739-740 (9 Cir. 1959); Alden-Rochelle," }, { "docid": "7269290", "title": "", "text": "job.” This happened before a decision upon the merits by the District Court, April 14, 1926, 12 F. (2d) 945, and a final decree dismissing the bill, March 23, 1928. The Circuit Court of Appeals, while intimating its probable adhesion to its former decision in a similar case, Barker Painting Co. v. Brotherhood of Painters, Decorators and Paperhangers of America, 15 F. (2d) 16, in accord with the decree below, declined to deal with the merits on the ground that it had become unnecessary to deal with them and for that reason affirmed the dismissal of the bill. 34 F. (2d) 3. Both sides desired that the Court should go farther afield. But a Court does all that its duty compels when it confines itself to the controversy before it. It cannot be required to go into general propositions or prophetic statements of how it is likely to act upon other possible or even probable issues that have not yet arisen. See Willing v. Chicago Auditorium Association, 277 U. S. 274. The controversy here was between the plaintiff and the painters in Somerville who prevented its finishing its job. If the case had needed to be considered on its merits, it would have been likely to involve a discussion more or less far reaching of the powers of the Union, but the plaintiff could not impose a duty to go into that discussion- when before the time for it the resistance had been withdrawn and the job had been done. Decree affirmed." }, { "docid": "7971310", "title": "", "text": "MARTIN, Chief Justice. This is an appeal from a decree of the lower court, dismissing a bill of complaint filed by appellant for an injunction to prevent the enforcement against it of certain union labor regulations with reference to the employment of union labor by appellant. It appears from the record that appellant is a corporation located in New York City, and that it takes contracts for inside and outside painting and decorating throughout the United Slates. When performing such contracts in cities other than New York, appellant employs union painters procured in New York City, together with others procured at the place where the contract is to be performed. The Brotherhood of Painters, Decorators, and Paperhangers of America, Inc., is a union, labor organization affiliated with the American Federation of Labor, and is composed of various local unions throughout the country. The latter severally exercise local jurisdiction within certain prescribed areas, and only members of such local unions are eligible to be members of the incorporated organization. The Brotherhood has adopted certain rules and regulations relating to union labor throughout the country, and any infraction of these regulations by a member of a local union may be punished by fine, suspension, or expulsion from the union. Among the regulations adopted and thus enforced by the Brotherhood are those commonly known as the “higher wage,” “shorter week,” and “fifty per cent.” rules. These provide-that, where a contractor undertakes a painting job “outside his home city or town, and in a locality where a district council or local council exists,” he shall pay union painters the higher rate of pay and give them the shorter working week prevailing as between the several localities, and shall also employ at least 50 per cent, of the painters engaged upon the local contract from among the members of the local union. The rules also provide that no union authority shall have power to grant exclusive or special privileges to any local union belonging to the Brotherhood, that all local conditions shall be strictly adhered to, and that the shorter workday and the higher wage" }, { "docid": "14275107", "title": "", "text": "labor difficulties caused by them. In addition to said bill for injunction and damages, in October 1959 three charges were filed with the National Labor Relations Board against defendant Brotherhood of Painters, Decorators and Paper Hangers of America and defendant Brotherhood of Painters, Decorators, and Paper Hangers of America Local No. 779. The plaintiff appeared in said cases, “and testified fully, freely and truthfully by oral testimony or affidavit against the defendants named therein.” All of the labor negotiations pertaining to the joint-venture at Jackson Lock and Dam, the bill for injunction and the charges filed with the NLRB were handled by plaintiff under the direction, control and instructions of Leland M. Wis-eombe. Leland M. Wiseombe did thereafter falsely and maliciously represent to defendant Brotherhood at a joint meeting of the Union and an Association of Painting Contractors, known as Painting and Decorating Contractors of America, at LaFayette, Indiana, in November 1959, that the plaintiff had conducted the labor negotiations contrary to his orders and instructions and without his knowledge. The defendant Unions threatened Wis-eombe and Wiseombe Southern with coercive measures, such as strikes and the like, wherever Wiseombe and Wiseombe Southern had contracts unless and as a condition to not using such coercive measures the plaintiff was discharged. As a proximate consequence of the threats and coercion of the defendant Unions, the plaintiff was discharged by Wiscombe and Wiscombe Southern in December 1959. In February 1960, he secured employment with Earl Paint Corporation of Utica, New York, and in March 1960 was working on a job for Earl Paint Corporation in Bartow, Florida. A jurisdictional dispute arose over the question of whether or not a member of the Brotherhood of Painters, Decorators and Paper Hangers of America should apply foam insulation to certain tanks on the job. Carl Griffin, a business or area representative for the Brotherhood and its locals, investigated the incident and falsely and maliciously reported to the Brotherhood that the plaintiff was the cause of said dispute. The Brotherhood demanded of Earl Paint Corporation that it discharge the plaintiff and threatened Earl Paint Corporation that if" }, { "docid": "21505260", "title": "", "text": "WOOLLEY, Circuit Judge. This appeal is from a decree of the District Court refusing a preliminary injunction to restrain the enforcement of two labor union rules alleged to be unlawful because unjustly discriminatory and in restraint of trade and interstate commerce. It; will not be .necessary to describe the relation of the many respondents (appellees) beyond saying that the Brotherhood of Painters, Decorators, and Paperhangers extends throughout the United States. It is divided into district councils in various regions, composed of delegates from local unions, and these in turn have their own subdivisions. We shall, for convenience, refer to-the group as “the union.” The rules here in question (articles 132 and 133 of the Union constitution) require that an employer of union labor, residing in one locality and doing work in another locality, shall select not less than fifty per cent, of his men from members of the union where the work is being done. They then require that his union employees, whether coming from a distant locality or residing in the locality of the work, shall demand the shorter work day and the higher wage scale prevailing in either locality. These rules, as interpreted and enforced by the union, may be illustrated by the facts in this case, as follows: The Barker Painting Company (complainant below and appellant here), a New York corporation with headquarters in New York City, is engaged throughout the United States in the business of contracting painter. When -it secures a contract, its practice is to send a foreman superintendent to the locality where the work is to be done. There he employs local painters — always members of the union — and proceeds with the work. On this occasion the complainant secured a contract for painting a building in Philadelphia, intending to meet the Union miles as to .wages and hours of work in that district. The Philadelphia scale is $1.00 per hour, an 8-hour day and a 5%-day week. The New York scale is $1.31 per hour, an 8-hour day and a 5-day week. The complainant’s employees resident in Philadelphia, acting under pressure" }, { "docid": "7971317", "title": "", "text": "of labor per day and of days per week, are within “the legitimate objects” of such unions within the sense of the Clayton Act. Otherwise the provisions of tho act regarding labor unions would he futile. Moreover, it is not unlawful for such unions to punish a member by fine, suspension, or expulsion for an infraction of the union rules, since membership in the union is purely voluntary. 24 Cyc. 824. Nor do we think that the regulations now in question are discriminatory, unreasonable, arbitrary, or oppressive. The higher wage and shorter week rules were adopted by the Brotherhood prior to the year 1913; the 50 per cent, rule in 1922; and they have been in force ever since. They are designed to meet a situation which without regulation would be productive of confusion and disorder for union labor. The cost of living is higher in some places than in others; therefore union wages vary in different localities. If a contractor employs union labor upon work in his own city, he must pay the union wages of that locality; but, if he moves his force of local labor to another city, he may meet there with a higher or lower union wage scale, as well as with different limitations as to periods of labor. It was to meet these contingencies that the rules now in question were adopted; and this case does not involve their wisdom, but only their legality. The rules do not discriminate against any particular person or place, and are uniform in their operation throughout tho country. As far as appears, they were regularly adopted in good faith by the Brotherhood, they govern the conduct of its members only, and the members are lawfully entitled to obey them by abstaining from work in applicable cases if they so desire. Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 A. 230. The present issue has been before the courts in various cases, and the weight of authority is deeidedly adverse to appellant’s claim. Barker Painting Co. v. Local Union, etc. (D. C.) 12 F.(2d) 945;" }, { "docid": "20345468", "title": "", "text": "and that the defendant be enjoined from taking any action to enforce it, and that it be commanded to notify certain named persons that they are at liberty to enter plaintiff’s services. To this complaint defendant filed a motion to dismiss, setting forth the insufficiency of the allegations therein stated The allegations of the bill clearly show that the effect of the rule in question is to make it difficult, if not impossible, for an outside contractor to compete with a local ¡contractor in the business of painting and decorating, wherever the rate of wages, etc., is more favorable to the workman in the contractor’s home territory than at the place where the work is to be done, to the injury of not only the outside contractor, but also of the public of the place where the work is to be done. This result has been accomplished by a combination of the defendants to prevent, by means of threats and intimidations, 'persons who otherwise would be willing to do so from working for such outside contractor, except on terms that malee it difficult, if not impossible, for them to compete with local contractors. That no threats of force have been used is immaterial, for threats of fine and expulsion from the defendant union are just as effectual as threats of force, where, as here, expulsion would mean the loss by the person expelled of the opportunity to make a living at his trade. The injury thus inflicted on the outside contractor and the public cannot be justified, sinice no legitimate interest of the defendants would be furthered by the operation of the rule in question. It was clearly designed for the sole purpose of excluding outside competition in the home market on the part of outside contractors, and since the 'plaintiff has been injured by the operation of the rule he is entitled to an injunction enjoining the defendants from enforcing it. The same conclusion was recently reached by Vice Chancellor Backes in New Jersey Painting Co. v. Local Union No. 26, Brotherhood of Painters, Decorators, and Paper Hangers of" }, { "docid": "23160261", "title": "", "text": "restriction on a member’s right to resign may be limited by the Act.” Ibid. The proviso to § 8(b)(1)(A), 29 U. S. C. § 158(b)(1)(A), states that nothing in the section shall “impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” The Court in Allis-Chalmers assumed that the proviso could not be read to authorize the imposition of court-enforceable fines. 388 U. S., at 192. See NLRB v. Boeing Co., 412 U. S. 67, 71, n. 5 (1973) (“This Court... , in holding that court enforcement of union fines was not an unfair labor practice in NLRB v. Allis-Chalmers Mfg. Co., relied on congressional intent only with respect to the first part of this section”) (citation omitted). See Bossert v. Dhuy, 221 N. Y. 342, 365, 117 N. E. 582, 587 (1917) (“The members of the organization . . . who are not willing to obey the orders of the organization are at liberty to withdraw therefrom”); Barker Painting Co. v. Brotherhood of Painters, 57 App. D. C. 322, 324, 23 F. 2d 743, 745, cert. denied, 276 U. S. 631 (1928) (It is “not unlawful for . . . unions to punish a member by fine, suspension, or expulsion for an infraction of the union rules, since membership in the union is purely voluntary”); Bayer v. Brotherhood of Painters, Decorators and Paperhangers of America, Local 301, 108 N. J. Eq. 257, 262, 154 A. 759, 761 (1931) (“association is a voluntary one, and the workmen may decline to become members or withdraw from membership, if dissatisfied with the conduct of its affairs”); Mische v. Kaminski, 127 Pa. Super. 66, 91-92, 193 A. 410, 421 (1937) (members “had a right to leave the union”); Longshore Printing Co. v. Howell, 26 Ore. 527, 540, 38 P. 547, 551 (1894) (“No resort can be had to compulsory methods of any kind either to increase, keep up, or retain such membership”). Our attention has not been called to any provision limiting the right to resign in a union constitution extant" }, { "docid": "6719481", "title": "", "text": "to do so, at least to some extent. Caterers recommend orchestras to customers and receive commissions from orchestra leaders. These practices actually or potentially affect the wages of the musicians involved. I believe that this constitutes an economic interrelationship which permits the defendants to regulate and prohibit the booking activities of the caterers without violating the Sherman Act. XI. RESTRICTIONS ON TRAVELING ORCHESTRAS Various AFM regulations favor the employment of local musicians rather than musicians from outside the jurisdiction. The principal incentive to employ local musicians is a requirement that “foreign” musicians be paid higher wages. Local employment and working conditions have long been recognized as legitimate concerns of labor unions. See American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360 (1921). In the face of antitrust attack, courts have repeatedly sustained union regulations requiring a foreign employer to adhere to the shorter workday and the higher wage scale of the standards prevailing in his home local or the local where the work was to be performed and to hire a specified percentage of his men from the latter local. Rambusch Decorating Co. v. Brotherhood of Painters, etc., 105 F.2d 134 (2d Cir. 1939), cert. denied, 308 U.S. 587, 60 S.Ct. 110, 84 L.Ed. 492 (1939); Barker Painting Co. v. Brotherhood of Painters, etc., 57 App.D.C. 322, 23 F.2d 743 (1927), cert. denied, 276 U.S. 631, 48 S.Ct. 324, 72 L.Ed. 741 (1928); Barker Painting Co. v. Brotherhood of Painters etc., 15 F.2d 16 (3d Cir. 1926), cert. denied, 273 U.S. 748, 47 S.Ct. 449, 71 L.Ed. 871 (1927). The Second Circuit noted in Rambusch, supra, 105 F.2d at 138: « * * * Of course, the real point here relied on is the supposed discrimination between non-resident and resident contractors. Discrimination of this general kind is one of the most natural things in the world, applied by states and cities in civil service appointments; by courts in cost bonds and other burdens against non-residents; by merchants, customers, laborers, and servants in trusting and favoring the local man" }, { "docid": "458702", "title": "", "text": "our opinion in the Pennsylvania case in which he found an implication that we had rather summarily and without full consideration disposed of that ease because on appeal from a decree merely refusing a preliminary injunction and, pointing to the difference between the two decrees — - there interlocutory, here final — represented that the evidence, which in that ease we said (as a caution against commitment on another state of facts) was not sufficient to invoke the extraordinary remedy of injunction, is supplied in this case by evidence which does justify such a remedy, and, thus setting up a new ease, asked for a reconsideration of the law and reversal of our previous position. We heard the argument at length. On our study of the record we of course found the facts in this case different from those in the Pennsylvania case as to place of work, personnel, dates, etc., but similar in character and action, and found no new facts which differentiate this case from the other or raise any new question of law. The same questions run through both eases, as indeed they do in all the reported cases on the sub ject, whether decided on interlocutory or final decree. New Jersey Painting Co. v. Local No. 26, 95 N. J. Eq. 108, 122 A. 622, reversed 96 N. J. Eq. 632, 126 A. 399, 47 A. L. R. 384; Hass, Inc., v. Local Union No. 17 (D. C.) 300 F. 894; Marshall v. Brotherhood, Common Pleas, Philadelphia, not reported; Douglas & Bros., Inc., v. Mallette, Superior Court, Rhode Island, not reported; Barker Painting Co. v. Brotherhood (C. C. A.) 15 F.(2d) 16, certiorari denied 273 U. S. 748, 47 S. Ct. 449, 71 L. Ed. 871; Barker Painting Co. v. Brotherhood, 57 App. D. C. 322, 23 F.(2d) 743, certiorari denied 276 U. S. 631, 48 S. Ct. 324, 72 L. Ed. 741. While we should be more than satisfied to have this controversy between employer and organized labor finally decided by the higher court, we are constrained, until then, to stand by the decision which" }, { "docid": "7971318", "title": "", "text": "wages of that locality; but, if he moves his force of local labor to another city, he may meet there with a higher or lower union wage scale, as well as with different limitations as to periods of labor. It was to meet these contingencies that the rules now in question were adopted; and this case does not involve their wisdom, but only their legality. The rules do not discriminate against any particular person or place, and are uniform in their operation throughout tho country. As far as appears, they were regularly adopted in good faith by the Brotherhood, they govern the conduct of its members only, and the members are lawfully entitled to obey them by abstaining from work in applicable cases if they so desire. Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 A. 230. The present issue has been before the courts in various cases, and the weight of authority is deeidedly adverse to appellant’s claim. Barker Painting Co. v. Local Union, etc. (D. C.) 12 F.(2d) 945; Barker Painting Co. v. Brotherhood of Painters (C. C. A.) 15 F(2d) 16; New Jersey Painting Co. v. Local Union No. 26, 96 N. J. Eq. 632, 126 A. 399, 47 A. L. R. 384. Various arguments are presented by appellant, which we have considered, but have not set out specifically in this opinion; for we consider it sufficient to say that in our judgment appellant’s case is without support in law. The decree of the lower court is affirmed, with costs, and the cause is remanded, for such further orders as are necessary with reference to the injunction pendente lite entered in the case below." }, { "docid": "7971311", "title": "", "text": "regulations relating to union labor throughout the country, and any infraction of these regulations by a member of a local union may be punished by fine, suspension, or expulsion from the union. Among the regulations adopted and thus enforced by the Brotherhood are those commonly known as the “higher wage,” “shorter week,” and “fifty per cent.” rules. These provide-that, where a contractor undertakes a painting job “outside his home city or town, and in a locality where a district council or local council exists,” he shall pay union painters the higher rate of pay and give them the shorter working week prevailing as between the several localities, and shall also employ at least 50 per cent, of the painters engaged upon the local contract from among the members of the local union. The rules also provide that no union authority shall have power to grant exclusive or special privileges to any local union belonging to the Brotherhood, that all local conditions shall be strictly adhered to, and that the shorter workday and the higher wage scale of either locality, as well as the 50 per cent, employment regulation; shall prevail in all cases. In the year 1933 the appellant entered into a contract to do the painting work for the Walker Hotel in the city of Washington, District of Columbia, for the sum of $70,-000, the work to be performed under penalties within a specified time. The New York rate of pay for union painters was $10.50 per day of 8 hours, -working 5 days a week, while the Washington rate was $9 per day of 8 hours, working 5% days a week. Accordingly the enforcement of the higher wage rule under these circumstances would compel appellant, if employing union painters, to pay $10.50 a day for those employed upon the contract, whereas any contractor located in Washington would be able to employ union painters for the same work at $9 per day. Appellant was' fully informed concerning these union regulations before it entered into the contract with the hotel company, but it intended to protest against their observance or" } ]

[ { "docid": "15464892", "title": "", "text": "was presented to the jury on two theories of liability: (1) knowingly recommending unsuitable securities and (2) taking excessive mark-ups on securities purchased for and sold to a client. Because we hold the specific findings of the jury support a judgment for plaintiff on the first theory, we need not consider arguments concerning excessive mark-ups. In order to recover on a private cause of action under Rule 10b-5, a plaintiff must show two things: first, that the rule has been violated, and second, that it was violated with scienter, that is, with intent to deceive, manipulate or defraud. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). It is clear from the jury’s answers to the interrogatories, that appellants violated Rule 10b-5. The jury specifically found that the debentures were unsuited to appel-lee’s needs, that appellant Lamula knew or reasonably believed they were unsuitable, but that he recommended them to her anyway. In addition, the jury found that La-mula failed to inform her (1) how the leading rating services rated the debentures, (2) that she could not expect to acquire $12,000 annual income from her investments unless she bought speculative securities involving great financial risk, and (3) the extent of the risks involved in purchasing the securities. The jury found further that had appellant Lamula informed her of these matters, including other investment opportunities, she would not have purchased the securities. Thus, there can be no doubt but that appellant Lamula engaged in an act, practice or course of business which operated as a fraud or deceit upon Mrs. Grupe and omitted to state facts material to an informed purchase by her. Further, the jury’s answers to interrogatories, taken in light of the trial judge’s charge, support a finding that appellants violated the scienter rule. In addition to finding that appellant intended to deceive Mrs. Grupe when he failed to inform her of other investment opportunities, the jury also found by clear and convincing evidence that appellants purchased the securities with the specific purpose of selling them to Mrs. Grupe, charged her an excessive" } ]

[ { "docid": "15962164", "title": "", "text": "alleged conspiracy to defraud stated in paragraph 32. Through the use of phrases such as “throughout several months in 1986,” “on one occasion,” “[o]n another occasion, in 1978,” and “in one case,” the complaint fails to specify the dates and places of several allegedly fraudulent acts. The complaint also fails to detail the alleged benefits that Goodman received other than the allegedly unauthorized withdrawals. Such bare allegations fail to satisfy the requirements of Rule 9(b). Indeed, throughout the entire paragraph, plaintiff makes one self-serving and conclusory allegation after another: she alleges that Shearson solicited trades without providing examples; she contends that Shearson owed her certain duties without specifying the basis of such claims; and she alleges that certain improper acts occurred without specifying how she was damaged thereby. Moreover, to the extent this paragraph relies on the rest of the complaint to plead that unsuitable trades were made, the claim is deficient for the reasons discussed above. To survive a motion to dismiss under Rule 9(b) with respect to a churning claim, a plaintiff must “plead and prove (1) that the trading in [her] account was excessive in light of [her] investment objectives, (2) that the broker exercised control over the account, and (3) that the broker acted with intent to defraud or with willful and reckless disregard for the interests of his client.” Levine v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 639 F.Supp. 1391, 1394 (S.D.N.Y.1986); Moran, 609 F.Supp. at 666; Mauriber, 546 F.Supp. at 394; Zaretsky v. E.F. Hutton & Co., Inc., 509 F.Supp. 68, 74 (S.D.N.Y.1981). Although the amended complaint adequately pleads specific turnover ratios with respect to each of plaintiffs accounts, (¶¶ 21, 27, 30, and 33), it fails to specify the content of plaintiffs communications to defendants as well as when and to whom her investment objectives were conveyed. Rather, plaintiff simply alleges that the defendants knew that certain stocks, which were traded, were never meant to be traded and on many occasions she discussed her investment goals with Goodman and Shearson. Any defendant would have great difficulty defending a case based on such" }, { "docid": "4432367", "title": "", "text": "basis for the allegations of scienter. E.g., Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987). In other words, plaintiffs must “‘specifically plead those events’ which ‘give rise to a strong inference’ that defendants had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Connecticut National Bank v. Fluor Corp., supra, 808 F.2d at 962 (citing Ross v. A.H. Robbins, supra, 607 F.2d at 558). 1. Hutton The Court begins by noting that the complaint is characterized by the type of vague, conclusory allegations that Rule 9(b) was designed to discourage. Plaintiffs have clearly failed to meet the requirements of Rule 9(b) with regard to Hutton. Most notably, the complaint fails to adequately apprise Hutton of its alleged role in the fraud and fails to specifically plead facts to support an inference of fraudulent intent, a necessary element of plaintiffs’ fraud claims. Plaintiffs seek to lump Hutton together with those defendants responsible for producing the offering materials in which the alleged misrepresentations and omissions occurred. In securities fraud claims posited on misrepresentations and omissions contained in offering memoranda, the memoranda themselves may satisfy the particularity requirements for pleading the time, place and content of the alleged fraudulent acts. Luce v. Edelstein, supra, 802 F.2d at 55. Furthermore, it is unnecessary to allege a specific connection between fraudulent representations in an offering memorandum and particular defendants where such defendants are insiders or affiliates participating in the offer of the securities in question. Id. at 55; DiVittorio v. Equidyne Extractive Industries, Inc., supra, 822 F.2d at 1247. Mere conclusory allegations of insider status, however, without accompanying facts which tie a defendant to the offering materials in a specific way, will not suffice to obviate the need to specify each defendant’s connection with the alleged fraudulent acts. See DiVittorio v. Equidyne Extractive Industries, Inc., supra, 822 F.2d at 1247-49; Stevens v. Equidyne Extractive Industries 1980, 694 F.Supp. 1057, [Current Binder] Fed.Sec.L.Rep. (CCH) ¶ 93,959, at 90,453 (S.D.N.Y.1988). Plaintiffs assert that Hutton is an insider, and as such is presumptively connected with any misrepresentations or" }, { "docid": "8851580", "title": "", "text": "stated above, the Court denies defendants’ motion to dismiss plaintiff’s section 10(b) and section 12(2) claims, but grants the motion as to plaintiff's section 17(a) claim. Defendants’ motion to dismiss the state law claims for lack of pendent jurisdiction is denied, though the Martin Act claim is dismissed since no private right of action exists thereunder. SO ORDERED. . The facts are drawn from this amended complaint and are deemed true for the purposes of the motions to dismiss. The Court has not relied on materials outside the complaint, submitted previously in connection with a motion to amend the complaint. . Defendants draw the Court’s attention to a copy of the promissory note attached to papers previously submitted to the Court. The Court declines to go beyond the pleadings, however, and does not consider the document. To do so would serve no useful purpose, in any event, since plaintiff has denied signing the document or knowing of its contents. The Court would not be able to resolve this factual dispute at this stage of the litigation. . Although defendants did not raise the “puf-fery\" argument in the context of an unsuitability claim, the Court notes that an \"allegation that a broker ‘knew or reasonably believed [certain investments] were unsuitable, but that he recommended them to [plaintiff] anyway is more than an allegation of ‘puffery' and states a violation of Rule 10b-5.” Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1237 (S.D.N.Y.1983) (citing Clark, supra, 583 F.2d at 600). . The Court disagrees with the statement in Clark, supra, that \"[rjecklessness is insufficient scienter for an unsuitability claim,” 636 F.Supp. at 198-99, upon which defendants rely. The Clark Court based this conclusion on Clark v. John Lamula Investors, Inc., 583 F.2d 594 (2d Cir.1978), in which the Second Circuit affirmed a finding of section 10(b) liability on an unsuitability claim based in part on the District Court’s scienter charge. Id. at 600-01. The Court of Appeals found that the jury charge sufficiently explained that plaintiff must prove that defendant intended to deceive plaintiff in making the unsuitable recommendation. Id. at 601." }, { "docid": "4432366", "title": "", "text": "fraud may fairly be drawn.”) Where there are multiple defendants, the complaint must disclose the specific nature of each defendant’s participation in the alleged fraud. DiVittorio v. Equidyne Extractive Industries, Inc., supra 822 F.2d at 1247. Furthermore, the allegations of fraud ordinarily may not be based upon information and belief. Luce v. Edelstein, supra, 802 F.2d at 54; Segal v. Gordon, supra, 467 F.2d at 608; Leslie v. Minson, 679 F.Supp. 280, 282 (S.D.N.Y.1988). This pleading restriction may be relaxed however, where the matter is peculiarly within the knowledge of defendant. DiVittorio v. Equidyne Extractive Industries, Inc., supra, 822 F.2d at 1247. When pleading upon information and belief is appropriate, plaintiffs are required to include a statement of the facts upon which the allegations of fraud are based. Stern v. Leucadia National Corp., 844 F.2d 997, 1004 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 137, 102 L.Ed.2d 109 (1988). Similarly, while Rule 9(b) allows “condition of mind” to be averred generally, plaintiffs must at least present those circumstances that provide a minimal factual basis for the allegations of scienter. E.g., Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987). In other words, plaintiffs must “‘specifically plead those events’ which ‘give rise to a strong inference’ that defendants had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Connecticut National Bank v. Fluor Corp., supra, 808 F.2d at 962 (citing Ross v. A.H. Robbins, supra, 607 F.2d at 558). 1. Hutton The Court begins by noting that the complaint is characterized by the type of vague, conclusory allegations that Rule 9(b) was designed to discourage. Plaintiffs have clearly failed to meet the requirements of Rule 9(b) with regard to Hutton. Most notably, the complaint fails to adequately apprise Hutton of its alleged role in the fraud and fails to specifically plead facts to support an inference of fraudulent intent, a necessary element of plaintiffs’ fraud claims. Plaintiffs seek to lump Hutton together with those defendants responsible for producing the offering materials in which the alleged misrepresentations and omissions occurred. In" }, { "docid": "18034732", "title": "", "text": "also AFP Imaging Corporation v. Ross, 780 F.2d 202, 205 (2d Cir.1985). Therefore, we retain jurisdiction over the claims arising under Section 10(b) and Rule 10b-5. We now turn to defendants’ arguments that the complaint fails to state a cause of action under Section 10(b) and Rule 10b-5. Only one of Clark’s allegations is actionable. Therefore, the Rule 12(b)(6), F.R. Civ.P. motion to dismiss is granted in part and denied in part. The first paragraph of the securities law count charges that Cross knowingly and intentionally purchased unsuitable securities for Clark’s account. The knowing recommendation of an unsuitable security states a cause of action for fraud under Section 10(b). Clark v. John Lamula Investors, Inc., 583 F.2d 594 (2d Cir.1978); Rush v. Oppenheimer & Co., 592 F.Supp. 1108, 1112, vacated in part, 596 F.Supp. 1529 (S.D.N.Y.1984) (Sweet, J.). In this district, an unsuitability cause of action has been held to lie where a broker who exercises discretionary authority knowingly misrepresents that the securities purchased are suitable. Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1237 (S.D.N.Y.1983) (Duffy, J.). Clark asserts only that Cross “indicated” that the account would be invested suitably. Complaint, ¶ 39(d). We need not rely on this ill-pled assertion to sustain this claim. There is also authority that, even absent any misrepresentation, a broker’s knowing purchase of an unsuitable security for a discretionary account is actionable. In Re Catanella and E.F. Hutton & Co., Inc. Securities Litigation, 583 F.Supp. 1388, 1405 (E.D.Pa.1984). Under Catanella’s reasoning, the unsuitable purchase itself is the proscribed act, not any representation connected with that purchase. Given that this circuit does recognize an unsuitability cause of action under Rule lob-5, the court sees no reason to restrict it to those situations in which a recommendation or representation as to suitability is made. As one treatise recognizes, the execution of a transaction for a discretionary account is, in function, a form of recommendation. 5B Jacobs, Litigation and Practice Under Rule 10b-5, 9-31 (1981). As such, it creates the same duties. The decision in Clark v. John Lamula, supra, emphasized the broker’s scienter as the" }, { "docid": "959419", "title": "", "text": "782 (1978); Armstrong v. McAlpin, 699 F.2d 79, 90 (2d Cir.1983). To establish churning a plaintiff must show (1) that the trading in the account was excessive in light of his investment objectives, (2) that the broker exercised control over the account, and (3) that the broker acted with intent to defraud or with willful and reckless disregard for the interests of his client. See Mihara v. Dean Witter & Co., Inc., 619 F.2d 814, 821 (9th Cir. 1980); Faturik v. Woodmere Securities, Inc., 442 F.Supp. 943 (S.D.N.Y.1977); Rolf v. Blyth Eastman Dillon & Co., Inc., 424 F.Supp. 1021 (S.D.N.Y.1977), aff'd, 570 F.2d 38 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978). Although there is no clear demarcation between excessive and non-excessive trading, it is thought by courts and commentators that an annual turnover rate in excess of six reflects excessive trading. See Mihara, supra, at 821; Rolf, supra, at 1039. Rush here alleges that over an eighteen month period his portfolio was turned over 10 times. Especially when Rush maintains that he had advised defendants that he wanted to pursue a conservative investment policy, this turnover rate satisfies the threshold pleading requirement for churning. Rush also pleads the second and third elements of churning by asserting that defendants, even if supposedly constrained by an agreement limiting the range of permissible investments for the account, disregarded those constraints and effectively exercised control over the account. See Zaretsky v. E.F. Hutton & Co., Inc., 509 F.Supp. 68 (S.D.N.Y.1981). Rush also alleges that defendants possessed the scienter necessary to establish churning. Rush also maintains a 10b-5 claim founded upon defendants’ continued recommendation of unsuitable investments. An assertion that a broker knew or reasonably believed that investments were unsuitable but that he recommended them to plaintiff nonetheless states a violation under 10b-5. See Clark v. John Lamula Inv., Inc., 583 F.2d 594, 600 (2d Cir.1978); Mauriber v. Shearson/American Exp., Inc., 567 F.Supp. 1231, 1237 (S.D.N.Y.1983); Savino, supra, at 1241. Rush satisfies this burden: the complaint asserts that the plaintiff had restricted the nature of stocks to be" }, { "docid": "6545580", "title": "", "text": "inquire in only the most general and conclu-sory terms. Second Circuit cases make it crystal clear that such allegations do not suffice. In Ross v. A.H. Robins Co., 607 F.2d 545 (558) (2d Cir.1979), the Court wrote: “It is reasonable to require that the plaintiffs specifically plead those events which they assert give rise to a strong inference that the defendants had knowledge of the facts contained in ... the complaint or recklessly disregarded their existence.” See also Shemtob v. Shearson Hammill & Co., Inc., 448 F.2d 442, 444-45 (2d Cir.1971). I recognize, as plaintiffs stress, that the last sentence of Rule 9(b) permits the pleader to allege “knowledge” and “other condition of mind of a person ... generally.” While the Second Circuit, consistent with that language, recognizes that “great specificity [is] not required with respect to ... allegations of ... scienter”, Goldman v. Belden, 754 F.2d 1059, 1070 (2d Cir.1985), this does not mean that bare conclu-sory allegations such as those at bar are sufficient. Most recently, Judge Timbers has written for the Second Circuit in Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987): “The absence of a requirement that scienter be alleged with ‘great specificity’ is based on the premise that a plaintiff realistically cannot be expected to plead a defendant’s actual state of mind. Ross, supra, 607 F.2d at 558. This does not mean, however, that plaintiffs are relieved of their burden of pleading circumstances that provide at least a minimal factual basis for their conclusory allegations of scienter. ‘It is reasonable to require that the plaintiffs specifically plead those events’ which ‘give rise to a strong inference’ that the defendants had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” The complaint at bar fails under Rule 9(b) with respect to any fraud theory. Insofar as plaintiffs seek to allege violations of section 12(iJ) of the 1933 Act and section 10(b) of the 1934 Act, I will grant leave to replead. But I will not grant leave to replead under section 17(a) of the 1933 Act" }, { "docid": "8851581", "title": "", "text": "litigation. . Although defendants did not raise the “puf-fery\" argument in the context of an unsuitability claim, the Court notes that an \"allegation that a broker ‘knew or reasonably believed [certain investments] were unsuitable, but that he recommended them to [plaintiff] anyway is more than an allegation of ‘puffery' and states a violation of Rule 10b-5.” Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1237 (S.D.N.Y.1983) (citing Clark, supra, 583 F.2d at 600). . The Court disagrees with the statement in Clark, supra, that \"[rjecklessness is insufficient scienter for an unsuitability claim,” 636 F.Supp. at 198-99, upon which defendants rely. The Clark Court based this conclusion on Clark v. John Lamula Investors, Inc., 583 F.2d 594 (2d Cir.1978), in which the Second Circuit affirmed a finding of section 10(b) liability on an unsuitability claim based in part on the District Court’s scienter charge. Id. at 600-01. The Court of Appeals found that the jury charge sufficiently explained that plaintiff must prove that defendant intended to deceive plaintiff in making the unsuitable recommendation. Id. at 601. The Court noted in a footnote that it had previously held that a finding of recklessness could support the scienter requirement, but did not reach the issue since recklessness was not an issue in the case. Id. at 600 n. 7 (citing Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 44-7 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978)). In Rolf, the Court stated \"that reckless conduct satisfies the scienter requirement.\" 570 F.2d at 46 (citations omitted). The point is somewhat academic in this case, because the Court believes that plaintiff has alleged facts from which the Court can infer a knowing recommendation of an unsuitable investment. . Although defendants’ arguments were directed to the unsuitability aspect of plaintiffs claim, it is clear to the Court that plaintiff has also alleged scienter as to the misrepresentation and omission aspects of her claim. . Rule 10b-5, often cited but rarely quoted in full, states: It shall be unlawful for any person, directly or indirectly by the use of" }, { "docid": "22288321", "title": "", "text": "and Rule 10b-5 should be liberally construed. Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017, 1024 (6th Cir.1979). As a general matter, however, private § 10(b)/Rule 10b-5 damage claims can be said to require: 1) the use of jurisdictional means 2) to implement a deceptive or manipulative practice (with the requisite scienter) 3) in connection with 4) the purchase or sale 5) of a security 6) causing 7) damages. Wilsmann v. Upjohn Co., 775 F.2d 713, 719 (6th Cir.1985) (quoting Mansbach, 598 F.2d at 1026), cert. denied, 476 U.S. 1171, 106 S.Ct. 2893, 90 L.Ed.2d 980 (1986). These claims are essentially fraud claims and must be pleaded with particularity. Moreover, “unsuitability” claims must plead “which transactions and securities are involved and the reason why these securities are unsuitable.” Bischoff v. G.K. Scott & Co., 687 F.Supp. 746, 753 (E.D.N.Y.1986). The district court found plaintiffs’ allegations were lacking in three areas. First, they failed to indicate which of the securities defendants purchased were unsuitable, or why. Second, the complaint contains no allegations of any allegedly fraudulent statements uttered by the defendants, nor does it contain any particular allegations of reliance resulting in specific investment decisions. Third, the district court found plaintiffs had failed to plead the element of the defendants’ control over their accounts with sufficient particularity. Although plaintiffs rely on three cases for support, none applies to this appeal. McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226 (1st Cir.1980), dealt with odometer tampering; Bosse v. Crowell Collier & Macmillan, 565 F.2d 602 (9th Cir. 1977), involved a fraudulent loan and pledge arrangement; and Windsor Associates v. Greenfeld, 564 F.Supp. 273 (D.Md.1983), involved a civil RICO claim based upon a kickback scheme. Plaintiffs also overlook that in each of those cases, the plaintiffs also pleaded detailed accounts of the alleged fraud. We agree with the district court that to state an “unsuitability” claim, a plaintiff must plead “which transactions and securities are involved and the reasons why these securities are unsuitable.” Bischoff, 687 F.Supp. at 753. This may seem to conflict with the decision in Memphis Housing Authority v. Paine," }, { "docid": "959420", "title": "", "text": "Rush maintains that he had advised defendants that he wanted to pursue a conservative investment policy, this turnover rate satisfies the threshold pleading requirement for churning. Rush also pleads the second and third elements of churning by asserting that defendants, even if supposedly constrained by an agreement limiting the range of permissible investments for the account, disregarded those constraints and effectively exercised control over the account. See Zaretsky v. E.F. Hutton & Co., Inc., 509 F.Supp. 68 (S.D.N.Y.1981). Rush also alleges that defendants possessed the scienter necessary to establish churning. Rush also maintains a 10b-5 claim founded upon defendants’ continued recommendation of unsuitable investments. An assertion that a broker knew or reasonably believed that investments were unsuitable but that he recommended them to plaintiff nonetheless states a violation under 10b-5. See Clark v. John Lamula Inv., Inc., 583 F.2d 594, 600 (2d Cir.1978); Mauriber v. Shearson/American Exp., Inc., 567 F.Supp. 1231, 1237 (S.D.N.Y.1983); Savino, supra, at 1241. Rush satisfies this burden: the complaint asserts that the plaintiff had restricted the nature of stocks to be purchased to prudent, non-risky investments. Nonetheless, Rush alleges that defendants deliberately misrepresented the risk of multiple investments and undertook highly risky investment strategems. Count One of Rush’s complaint survives defendants’ 12(b)(6) attack. Count 2: Common Law Fraud Recovery for common law fraud can be based upon a material misrepresentation made with scienter which induces reliance to the detriment of the party to whom the misrepresentation was made. Fund of Funds, Ltd. v. Arthur Andersen & Co., 545 F.Supp. 1314, 1359 (S.D.N.Y. 1982). Non-disclosure of material information or failure to disclose information which is necessary to make other representations not misleading are also actionable provided there was a fiduciary relationship between the parties or a duty of disclosure arising from a relationship of trust and confidence between the parties. Fund of Funds, Ltd. v. Arthur Andersen & Co., supra, at 1359. The same allegations of fact that support the necessary elements of Rush’s 10b-5 claim — material misrepresentation, scienter, and reliance — provide a foundation for this common law fraud claim. However, Rush does not allege" }, { "docid": "18034731", "title": "", "text": "as to Clark’s state law claims. Until recently, the issue of arbitrability of Section 10(b) divided the courts within this circuit. This court was itself divided. The majority position held that Section 10(b) claims were arbitrable. See, e.g., Intre Sport Ltd. v. Kidder, Peabody & Co., 625 F.Supp. 1303 (S.D.N.Y.1985) (Sweet, J.); Finkle & Ross v. A.G. Becker Paribas, Inc., 622 F.Supp. 1505 (S.D.N.Y.1985) (Edelstein, J.); Jarvis v. Dean Witter Reynolds, Inc., 614 F.Supp. 1146 (D.Vt.1985) (Tenney, J.); Brener v. Becker Paribas, Inc., 84 Civ. 5872 (S.D.N.Y. December 31, 1985); Han v. Shearson/American Express, Inc., 632 F.Supp. 886 (S.D.N.Y.1985) (Conner, J.); Johnson v. Kidder, Peabody & Co., 85 Civ. 178 (N.D.N.Y. July 30,1985). Contra, Leone v. Advest, Inc., 624 F.Supp. 297 (S.D.N.Y.1985) (Carter, J.); Weizman v. Adomato, 84 Civ. 3603 (E.D.N.Y. April 25, 1985). While this motion was under advisement, our Circuit approved this court’s minority ruling in Leone v. Advest, supra, and held that Section 10(b) claims are not arbitrable. McMahon v. Shear-son/American Express, Inc., 788 F.2d 94, 97 n. 4 (2d Cir.1986). See also AFP Imaging Corporation v. Ross, 780 F.2d 202, 205 (2d Cir.1985). Therefore, we retain jurisdiction over the claims arising under Section 10(b) and Rule 10b-5. We now turn to defendants’ arguments that the complaint fails to state a cause of action under Section 10(b) and Rule 10b-5. Only one of Clark’s allegations is actionable. Therefore, the Rule 12(b)(6), F.R. Civ.P. motion to dismiss is granted in part and denied in part. The first paragraph of the securities law count charges that Cross knowingly and intentionally purchased unsuitable securities for Clark’s account. The knowing recommendation of an unsuitable security states a cause of action for fraud under Section 10(b). Clark v. John Lamula Investors, Inc., 583 F.2d 594 (2d Cir.1978); Rush v. Oppenheimer & Co., 592 F.Supp. 1108, 1112, vacated in part, 596 F.Supp. 1529 (S.D.N.Y.1984) (Sweet, J.). In this district, an unsuitability cause of action has been held to lie where a broker who exercises discretionary authority knowingly misrepresents that the securities purchased are suitable. Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1237" }, { "docid": "7704883", "title": "", "text": "basis from which an inference of fraud may fairly be drawn.”). Where there are multiple defendants, the complaint must disclose the specific nature of each defendant’s participation in the alleged fraud. DiVittorio v. Equidyne Extractive Inds., Inc., supra, 822 F.2d at 1247. Furthermore, the allegations of fraud ordinarily may not be based upon information and belief. Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986); Segal v. Gordon, supra, 467 F.2d at 608; Leslie v. Minson, 679 F.Supp. 280, 282 (S.D.N.Y.1988). This pleading restriction may be relaxed, however, where the matter is peculiarly within the knowledge of the defendant. DiVittorio v. Equidyne Extractive Inds., Inc., supra, 822 F.2d at 1247. When pleading upon information and belief is appropriate, a plaintiff must include a statement of the facts upon which the allegations of fraud are based. Stern v. Leucadia Nat’l Corp., 844 F.2d 997, 1004 (2d Cir.), cert. denied, — U.S. —, 109 S.Ct. 137, 102 L.Ed.2d 109 (1988). Similarly, while Rule 9(b) allows “condition of mind” to be averred generally, a plaintiff must at least present those circumstances that provide a minimal factual basis for the allegations of scienter. E.g., Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987). In other words, a plaintiff must “ ‘specifically plead those events’ which ‘give rise to a strong inference’ that defendants had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Id. (quoting Ross v. A.H. Robins Co., supra, 607 F.2d at 558). In the instant case, plaintiffs have alleged a comprehensive scheme to defraud with sufficient particularity to satisfy the requirements of Rule 9(b). Moreover, they have specifically set forth the alleged role of each defendant to support a claim against each of them based either on primary liability or on aiding and abetting liability. Plaintiffs have set forth a sufficient factual foundation to support an inference of the existence of a fraudulent scheme, and the participation of each defendant in that scheme. The Court will not grant defendants’ motion on the ground that the bulk of the allegations are made, impermissibly," }, { "docid": "8851566", "title": "", "text": "nature of the investment, in order to induce her to invest in CSH-1, by leading her to believe that the investment would not place any of her money at risk of being lost, even though the prospectus, allegedly never shown to plaintiff, described the investment as risky. Defendants certainly should know what plaintiff has accused them of doing, and further elaboration is not necessary at the pleading stage. 2. Scienter James also allegedly explained to plaintiff that the investment was suitable for her conservative investment strategy. At the same time, James allegedly failed to inform plaintiff that Prudential, her employer, was a special partner in the limited partnership and was acting as its promoter, a fact that an investor would reasonably want to know. She also failed to explain to plaintiff that the investment was risky, was designed as a tax shelter and that other investments might be more suitable. In this circuit, “the knowing recommendation of an unsuitable security states a cause of action for fraud under Section 10(b).” Clark v. Kidder Peabody & Co., Inc., 636 F.Supp. 195, 198 (S.D.N.Y.1986); see also Leone v. Advest, Inc., 624 F.Supp. 297, 304 (S.D.N.Y.1985) (plaintiff states unsuitability claim by alleging that broker knowingly or intentionally chose unsuitable investments). Defendant argues that plaintiff has not alleged the scienter necessary to support an unsuitability claim. The Court disagrees. Defendant stresses that plaintiff must allege that defendants “knowingly” recommended or executed unsuitable securities in order to state a claim for relief under section 10(b). This Court recently stated: For the purpose of stating a claim and satisfying the requirements of Rule 9(b), plaintiff must supply sufficient facts that give rise to a strong inference that defendant has an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth. Conn. Natl Bank v. Fluor Corp, 808 F.2d 957, 962 [2d Cir.1987] (citing Boss v. A.H. Robins, 607 F.2d 545, 558 (2d Cir.1979), cert. denied, 446 U.S. 946 [, 100 S.Ct. 2175, 64 L.Ed.2d 802] (1980)). Great specificity is not required for allegations of scienter, since Rule 9(b) states that “[m]alice, intent," }, { "docid": "16550970", "title": "", "text": "to reduce the number of strike suits. Cosmas v. Hassett, supra, 886 F.2d at 11; DiVittorio v. Equidyne Extractive Industries, Inc., 822 F.2d 1242, 1247 (2d Cir.1987). In order to satisfy Rule 9(b) “a complaint must adequately specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiff contends the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements.” Cosmas v. Hassett, supra, 886 F.2d at 11. See also Griffin I, ¶ 94,389 at 92,531 (citing Conan Properties, Inc. v. Mattel, Inc., 619 F.Supp. 1167, 1172 (S.D.N.Y.1985)). Where there are multiple defendants, the complaint must disclose the specific nature of each defendant’s participation in the alleged fraud. DiVittorio v. Equidyne Extractive Industries, Inc., supra, 822 F.2d at 1247. In an action alleging securities fraud, “reference to an offering memorandum satisfies 9(b)’s requirement of identifying time, place, speaker and content of representations where ... defendants are insiders or affiliates participating in the offering of securities.” Ouaknine v. MacFarlane, 897 F.2d 75, 80 (2d Cir.1990); Luce v. Edelstein, supra, 802 F.2d at 55. While Rule 9(b) allows “condition of mind” to be averred generally, plaintiffs must at least present those circumstances that provide a minimal factual basis for the allegations of scienter. E.g., Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987). In other words, plaintiffs must “ ‘specifically plead those events’ which ‘give rise to a strong inference’ that defendants had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Id. at 962 (citing Ross v. A.H. Robbins, supra, 607 F.2d at 558); Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir.1990) (“Although scienter need not be alleged with great specificity, plaintiffs are still required to plead the factual basis which gives rise to a ‘strong inference’ of fraudulent intent”). 1. Crown Plaintiffs assert claims against Crown for (1) securities fraud under section 10(b) and Rule 10b-5, (2) aiding and abetting securities fraud, (3) common law fraud, and (4) RICO, predicated on fraud. In" }, { "docid": "8851567", "title": "", "text": "Co., Inc., 636 F.Supp. 195, 198 (S.D.N.Y.1986); see also Leone v. Advest, Inc., 624 F.Supp. 297, 304 (S.D.N.Y.1985) (plaintiff states unsuitability claim by alleging that broker knowingly or intentionally chose unsuitable investments). Defendant argues that plaintiff has not alleged the scienter necessary to support an unsuitability claim. The Court disagrees. Defendant stresses that plaintiff must allege that defendants “knowingly” recommended or executed unsuitable securities in order to state a claim for relief under section 10(b). This Court recently stated: For the purpose of stating a claim and satisfying the requirements of Rule 9(b), plaintiff must supply sufficient facts that give rise to a strong inference that defendant has an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth. Conn. Natl Bank v. Fluor Corp, 808 F.2d 957, 962 [2d Cir.1987] (citing Boss v. A.H. Robins, 607 F.2d 545, 558 (2d Cir.1979), cert. denied, 446 U.S. 946 [, 100 S.Ct. 2175, 64 L.Ed.2d 802] (1980)). Great specificity is not required for allegations of scienter, since Rule 9(b) states that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally.” Id. (citing Goldman v. Belden, 754 F.2d 1059, 1070 (2d Cir.1985)). Wolff Office Equip. Corp. v. Wang Laboratories, No. 87 Civ. 1498 (SWK), slip op. at 2-3, 1988 WL 143119 (S.D.N.Y. December 30, 1988). Plaintiff has met her burden by alleging that James (1) knew of plaintiffs conservative, risk-free investment goals, (2) lead plaintiff to believe that CSH-1 was an appropriate investment, (3) knew or should have known that CSH-1 was a risky, tax shelter, and (4) knew or should have known that plaintiff did not have the income or assets required for investment in CSH-1. Coupled with the fact that defendant Prudential-Bache was a promotor for CSH-1, and that defendants allegedly forged or altered key documents necessary to the investment, it is possible to infer from the complaint that defendants knowingly suggested and encouraged an unsuitable investment. The Court concludes that plaintiff has adequately alleged scienter. B. Forgeries and Alterations Defendants attack plaintiffs forgery and alteration allegations on the basis that" }, { "docid": "7704884", "title": "", "text": "present those circumstances that provide a minimal factual basis for the allegations of scienter. E.g., Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987). In other words, a plaintiff must “ ‘specifically plead those events’ which ‘give rise to a strong inference’ that defendants had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Id. (quoting Ross v. A.H. Robins Co., supra, 607 F.2d at 558). In the instant case, plaintiffs have alleged a comprehensive scheme to defraud with sufficient particularity to satisfy the requirements of Rule 9(b). Moreover, they have specifically set forth the alleged role of each defendant to support a claim against each of them based either on primary liability or on aiding and abetting liability. Plaintiffs have set forth a sufficient factual foundation to support an inference of the existence of a fraudulent scheme, and the participation of each defendant in that scheme. The Court will not grant defendants’ motion on the ground that the bulk of the allegations are made, impermissibly, on the basis of information and belief. The amended complaint comprises fifty-nine pages and 143 numbered paragraphs. The allegations are made on information and belief, except as to paragraphs 1-4, 7, 8,12, 21, 26, 27, 59, 60, 62, 69 and 76. Plaintiff Miguel Perez-Rubio has submitted an affidavit in which he avers that he is prepared to allege on personal knowledge the facts set forth in paragraphs 5, 6, 9, 13, 22-24, 28-34, 37-60 and 63-85 of the amended complaint. Affidavit of Miguel Perez-Ru-bio, filed July 1, 1985 112. Moreover, Mr. Perez-Rubio is prepared to allege additional facts in support of his claim. Id. 11114-20. In view of these submissions and the history of this case, the Court concludes that the purposes of Rule 9(b) have been amply served. Defendants have adequate notice of the nature of the claim against them, and the Court is satisfied that the instant action is not simply a strike suit intended to extract its nuisance or settlement value from defendants. Accordingly, the Court declines to dismiss the amended complaint" }, { "docid": "22193267", "title": "", "text": "more “predicate” acts, 18 U.S.C. § 1961(1), constituting a “pattern of racketeering activity.” 18 U.S.C. §§ 1961(5), 1962, 1964(c). See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495-96, 105 S.Ct. 3275, 3285-86, 87 L.Ed.2d 346 (1985); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). Plaintiffs’ amended complaint alleged multiple violations of the mail fraud statute, 18 U.S.C. § 1341, and the wire fraud statute, 18 U.S.C. § 1343, as the predicate acts committed by the defendants. The initial question on this appeal is whether the amended complaint pled the scienter element of these violations with sufficient detail to satisfy Fed.R.Civ.P. 9(b). 1. Adequacy of Pleading Scienter In general, the mail and wire fraud statutes require, inter alia, a showing of intentional fraud. See United States v. Von Barta, 635 F.2d 999, 1005 n. 14 (2d Cir.1980), cert. denied, 450 U.S. 998, 101 S.Ct. 1703, 68 L.Ed.2d 199 (1981); Sop- er v. Simmons Int’l, Ltd., 682 F.Supp. 244, 250 (S.D.N.Y.1986). Although Rule 9(b) provides that intent and “other condition of mind” may be averred generally, plaintiffs must nonetheless provide some factual basis for conclusory allegations of intent. Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987); Ross v. A.H. Robins Co., 607 F.2d 545, 558 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Soper v. Simmons Int’l, Ltd., supra, 632 F.Supp. at 249. These factual allegations must give rise to a “strong inference” that the defendants possessed the requisite fraudulent intent. See Connecticut National Bank v. Fluor Corp., supra, 808 F.2d at 962; Ross v. A.H. Robins Co., supra, 607 F.2d at 558. A common method for establishing a strong inference of scienter is to allege facts showing a motive for committing fraud and a clear opportunity for doing so. See e.g., Goldman v. Belden, 754 F.2d 1059, 1070 (2d Cir.1985). Where motive is not apparent, it is still possible to plead scienter by identifying circumstances indicating conscious behavior by the defendant, see United States v." }, { "docid": "6545581", "title": "", "text": "Circuit in Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987): “The absence of a requirement that scienter be alleged with ‘great specificity’ is based on the premise that a plaintiff realistically cannot be expected to plead a defendant’s actual state of mind. Ross, supra, 607 F.2d at 558. This does not mean, however, that plaintiffs are relieved of their burden of pleading circumstances that provide at least a minimal factual basis for their conclusory allegations of scienter. ‘It is reasonable to require that the plaintiffs specifically plead those events’ which ‘give rise to a strong inference’ that the defendants had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” The complaint at bar fails under Rule 9(b) with respect to any fraud theory. Insofar as plaintiffs seek to allege violations of section 12(iJ) of the 1933 Act and section 10(b) of the 1934 Act, I will grant leave to replead. But I will not grant leave to replead under section 17(a) of the 1933 Act and 15(c) of the 1934 Act for reasons stated infra. IV. I have previously concluded that section 17(a) of the 1933 Act does not confer a private right of action. Ackerman v. Clinical Data, Inc., [1985-86 Transfer Binder] CCH Fed.Sec.L.Rep. ¶ 92,207 (S.D.N.Y.1985) [Available on WESTLAW, 1985 WL 1884]. Currently the question must be regarded as open in the Second Circuit. Zerman v. Ball, supra, at 23. Accordingly I adhere to the reasoning expressed in Ack-erman. Other courts have also concluded that section 17(a) confers no private right of action. See, e.g., Landry v. All American Assurance Co., 688 F.2d 381, 390 (5th Cir.1982). For comparable reasons, I reach the same conclusion with respect to section 15(c)(1) of the 1934 Act. While earlier authority in this Court suggests a different result, at least in respect to a broker’s preferential sale order, Opper v. Hancock Securities Corp., 250 F.Supp 668 (S.D.N.Y., aff'd per curiam), 367 F.2d 157 (2d Cir.1966), more recent authority denies a general private right of action under this section. See SEC v. Seaboard" }, { "docid": "16550971", "title": "", "text": "75, 80 (2d Cir.1990); Luce v. Edelstein, supra, 802 F.2d at 55. While Rule 9(b) allows “condition of mind” to be averred generally, plaintiffs must at least present those circumstances that provide a minimal factual basis for the allegations of scienter. E.g., Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987). In other words, plaintiffs must “ ‘specifically plead those events’ which ‘give rise to a strong inference’ that defendants had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Id. at 962 (citing Ross v. A.H. Robbins, supra, 607 F.2d at 558); Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir.1990) (“Although scienter need not be alleged with great specificity, plaintiffs are still required to plead the factual basis which gives rise to a ‘strong inference’ of fraudulent intent”). 1. Crown Plaintiffs assert claims against Crown for (1) securities fraud under section 10(b) and Rule 10b-5, (2) aiding and abetting securities fraud, (3) common law fraud, and (4) RICO, predicated on fraud. In Griffin I, the Court found that the First Amended Complaint failed to allege adequately Crown’s participation in the fraud. The allegations of fraud which plaintiffs claimed involved Crown were either framed generally against a group of defendants, or specifically against defendants other than Crown. For example, plaintiffs alleged that certain reports, projections and evaluations were false and misleading, but failed to identify how Crown was connected to these items. See Griffin I, ¶ 94,389 at 92,532-33. Such generalized pleading was clearly insufficient under Rule 9(b). The Second Amended Complaint responded to the deficiencies noted by the Court in Griffin I by adding needed particularity to the allegations concerning Crown. Crown is alleged to have been the sublessor of the drilling prospects for the 1982 partnerships, S.A.C. 1HÍ 26, 121. These drilling rights had been acquired by Crown from Gillham. S.A.C. ¶¶ 28-29, 121. The subleases to the partnerships provided that Crown would receive sixty percent (60%) of all revenues generated by the partnerships’ oil and gas production, of which it would retain fourteen percent (14%)." }, { "docid": "8851570", "title": "", "text": "alleged in the complaint falls within the purview of subsections (a) and (c) of Rule 10b-5, which do not specifically speak of omissions or misrepresentations, the Supreme Court has clarified that the scope of Rule 10b-5 is limited by the statutory requirement of a deceptive or manipulative practice. Id. at 473-74, 97 S.Ct. at 1300-01; see also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 212-14, 96 S.Ct. 1375, 1390-91, 47 L.Ed.2d 668 (1976) (ruling that the scope of Rule 10b-5 cannot exceed the power granted to the S.E.C. by Congress in section 10(b)). Since plaintiff does not allege a “manipulative” practice as the term is defined, plaintiff must allege “deceptive” practices in order to state a claim under section 10(b). The Court believes that plaintiff has alleged a claim for relief. In Clark v. Kid der, Peabody, supra, the Court held that a broker’s knowing purchase of an unsuitable security for a discretionary account is actionable under section 10(b), even absent any misrepresentation, since the unsuitable purchase itself is the proscribed act. 636 F.Supp. at 198. Even if the account in the present case were not discretionary, since it appears that consent by plaintiff was necessary prior to investment, the knowing forgery and alteration of documents by defendants has the same effect as the purchase of an unsuitable security in a discretionary account. In both cases, defendants have acted with scienter, a principal requirement, see id. (noting that scienter is the chief precondition of liability, not the recommendation), and in both situations the broker is acting on behalf or in the stead of the investor in a fraudulent fashion. Similarly, in Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231 (S.D.N.Y.1983), the Court stated that plaintiff did not need to allege reliance on defendant’s deliberate misstatements in a Discretionary Information Statement concerning plaintiff’s investment objectives “since these statements were designed not to mislead [plaintiff] but to facilitate [defendant’s] fraudulent conduct.” 567 F.Supp. at 1236. In the present case, as well, the alleged misstatements in plaintiff’s investor questionnaire were designed not to mislead plaintiff but to advance defendants’ alleged fraudulent scheme." } ]

[ { "docid": "1556651", "title": "", "text": "products used or consumed in the state; (5) has an interest in, uses, or possesses real property in the state; or (6) contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the state at the time the contract is made, unless the parties otherwise provide in writing. Jachino and Campbell state in their affidavits that neither lives in Maryland, owns, possesses or uses real property in Maryland; and that the only contacts each has had in the state are as follows: Jachino spent one week in Maryland nine years ago on business that did not concern the plaintiff; Campbell attended some meetings in Maryland prior to February 1976, and met with the plaintiff in Maryland on February 21, 1976, but has not been in Maryland since that date. Consequently, only subsection (b)(4) of the Long Arm Statute is applicable to these defendants. The plaintiff has the burden of proving, or at least making a prima facie showing of, the jurisdictional facts to show that the individual defendants regularly do or solicit business in Maryland, engage in another persistent course of conduct in the state, or derive substantial revenue from goods, services or manufactured products used or consumed in the state. Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir. 1974); Holfield v. Power Chemical Co., 382 F.Supp. 388 (D.Md.1974). The plaintiff alleges that the individual defendants have sufficient contacts with the state, but does not specify such contacts. He does not specifically allege any contacts other than those admitted in the defendants’ affidavits; nor does he allege that either defendant derives substantial revenue from products used or sold in Maryland. Therefore, before this Court can assert personal jurisdiction over the defendants Jachino and Campbell, the contacts specified in their affidavits must constitute regularly doing or soliciting business in Maryland. It is clear that the one week Jachino spent in Maryland nine years ago is not “regular” or “persistent” conduct of any kind. Plaintiff has thus failed to allege or prove the facts necessary" } ]

[ { "docid": "22054037", "title": "", "text": "400, 54 L.Ed.2d 280 (1977); Holfield v. Power Chemical Co., 382 F.Supp. 388, 393 (D.Md.1974). In light of the Maryland courts' recent silence on this issue (we having been unable to uncover state-court caselaw on point since 1969), and because we believe that the district court decisions accurately reflect the Maryland courts’ own interpretations of the long-arm statute, we cite to them as persuasive authority. . Mylan urged the district court to consider several other \"critical” facts about Akzo, including (1) Akzo's use of the United States District Court for the Eastern District of Virginia to protect its United States patent; (2) Akzo’s alleged \"ownership” of Bionetics Research, Inc., a medical research company with facilities in Rockville, Frederick, and Kensington, Maryland which, like some of its other American subsidiaries, uses the Akzo name and logo in advertising; (3) statements in Akzo’s annual report for 1989 concerning Akzo’s gross sales and the number of employees Akzo has in North America; and (4) the fact that Akzo's American Depository Receipts, or \"ADRs,” trade on the National Association of Securities Dealers Automated Quotation System (NASDAQ); (5) Akzo’s use of its ADRs to acquire an American subsidiary; and (6) the guarantee of a $300 million line of credit for other Akzo American subsidiaries. In the face of Akzo’s proof, the court declined to credit these facts as sufficient to establish a prima facie case of personal jurisdiction under the Maryland long-arm statute. We are prevented from reviewing the district court's decision, however, because Mylan has failed to argue these jurisdictional facts in its brief. See Fed.R.App.P. 28(a)(5), (b). We therefore conclude that Mylan has waived the arguments on appeal. See Shopco Distrib. Co. v. Commanding General, 885 F.2d 167, 170 n. 3 (4th Cir.1989) (noting that failure to comply with terms of former version of Fed.R.App.P. 28(a)(5) constitutes waiver of asserted claims)." }, { "docid": "22054036", "title": "", "text": "to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing. Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992). . Although decisions of the United States District Court for the District of Maryland do not bind our deliberations, we note that over the past two decades that bench has handed down several thorough, scholarly examinations of corporate veil-piercing for jurisdictional purposes under the Maryland long-arm statute. See, e.g., Birrane v. Master Collectors, Inc., 738 F.Supp. 167, 169—70 (D.Md.1990); Translation Sys., Inc. v. Applied Technology Ventures, 559 F.Supp. 566, 567-68 (D.Md.1983); Finance Co. of Am. v. BankAmerica Corp., 493 F.Supp. 895, 903-08 (D.Md.1980); Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 786 (D.Md.1978); Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367, 370-78 (D.Md.1975), aff'd in part, rev'd in part on other grounds, 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977); Holfield v. Power Chemical Co., 382 F.Supp. 388, 393 (D.Md.1974). In light of the Maryland courts' recent silence on this issue (we having been unable to uncover state-court caselaw on point since 1969), and because we believe that the district court decisions accurately reflect the Maryland courts’ own interpretations of the long-arm statute, we cite to them as persuasive authority. . Mylan urged the district court to consider several other \"critical” facts about Akzo, including (1) Akzo's use of the United States District Court for the Eastern District of Virginia to protect its United States patent; (2) Akzo’s alleged \"ownership” of Bionetics Research, Inc., a medical research company with facilities in Rockville, Frederick, and Kensington, Maryland which, like some of its other American subsidiaries, uses the Akzo name and logo in advertising; (3) statements in Akzo’s annual report for 1989 concerning Akzo’s gross sales and the number of employees Akzo has in North America; and (4) the fact that Akzo's American Depository Receipts, or \"ADRs,” trade on the National Association" }, { "docid": "15845738", "title": "", "text": "the corporate veil” generally, the corporate veil can be pierced for jurisdictional purposes. Compare Holfield v. Power Chemical Co., Inc., 382 F.Supp. 388, 393 (D.Md.1974) (grounds to pierce corporate veil) with Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 786 (D.Md.1978) (no grounds to pierce veil). Absent such grounds, however, there is no basis whatsoever for holding that merely because a corporation transacts business in the state, contracts to supply goods or services in the state or has other substantial contacts with the state, an individual who is its principal should be deemed to have engaged in those activities personally. It certainly cannot be presumed that in enacting the long-arm statute, the Maryland General Assembly intended a consequence so at variance with the most basic tenets of corporation law. Moreover, if the General Assembly did have such an intent, its action would have been unconstitutional. An individual who has chosen simply to transact business in a state through a valid and viable corporation has not necessarily “purposefully avail[ed]” himself of “the privilege of conducting activities within ... [that] State” in his individual capacity. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Nor can it be said that he would “reasonably anticipate being haled into court” in the state in his individual capacity by virtue of the corporation’s activities there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); see also Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984) (employees’ contacts with the state “are not to be judged according to their employer’s activities there”); Shaffer v. Heitner, 433 U.S. 186, 213-16, 97 S.Ct. 2569, 2584-86, 53 L.Ed.2d 683 (1977) (individuals’ status as directors and officers of a corporation insufficient to sustain jurisdiction over them in the state of incorporation absent a statute to the contrary). No principle is more firmly embedded in corporation law than that a corporation exists separately and independently from its principals, and business people are entitled to rely upon the maintenance of that principle" }, { "docid": "18674511", "title": "", "text": "to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.” Md. Courts & Judicial Proceedings Code Ann. § 6-103. For the statute to apply it is sufficient if any of the provisions of subsection (b) are satisfied. United Merchants & Mfrs., Inc. v. David & Dash, Inc., 439 F.Supp. 1078, 1082 (D.Md.1977); Lawson v. Baltimore Paint & Chemical Corp., 298 F.Supp. 373, 377 (D.Md.1969). Application of the long arm statute is essentially a two-step process. The court must first determine whether a particular subsection purports to authorize service of process on the non-resident. Second, the court must determine whether that service and the attendant exercise of personal jurisdiction comports with due process. See Haynes v. James H. Carr, Inc., 427 F.2d 700, 703 (4th Cir.), cert. denied, 400 U.S. 942,91 S.Ct. 238, 27 L.Ed.2d 245 (1970); Geelhoed v. Jensen, 277 Md. 220, 224, 352 A.2d 818 (1976). This court is bound by the decisions of the Court of Appeals of Maryland as to whether a particular subsection will reach certain conduct. McLaughlin v. Copeland, 435 F.Supp. 513, 522 (D.Md.1977); Bennett v. Computers Intercontinental, Inc., 372 F.Supp. 1082,1084 (D.Md.1974). See Shealy v. Challenger Mfg. Co., 304 F.2d 102, 104 (4th Cir. 1962). Federal law is controlling, however, as to whether the exercise of personal jurisdiction violates due process. United Merchants & Mfrs., Inc. v. David & Dash, Inc., 439 F.Supp. at 1801. The exercise of personal jurisdiction by this court over defendant, therefore, is subject ultimately to the constitutional limitations set forth by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. A. Subsection (b)(3) Maryland’s long arm statute was modeled after the Uniform Interstate and International Procedures Act, 13 U.L.A. 285 (1975 Master Edition). Carter v. Massey, 436 F.Supp. 29, 32 (D.Md.1977); Malinow v. Eberly, 322 F.Supp. at 598. Not all subsections of the Maryland statute, however," }, { "docid": "22054021", "title": "", "text": "v. Curt G. Joa, Inc., 361 F.2d 706, 717 (4th Cir.1966). To prove that the district court may assert personal jurisdiction over Akzo, Mylan must show (1) that a statute or rule authorizes service of process on Akzo in the District of Maryland; and (2) that service on Akzo comports with the requirements of the Due Process Clause of the Fourteenth Amendment. See Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102-03, 108 S.Ct. 404, 408-09, 98 L.Ed.2d 415 (1987); World-Wide Volkswagen 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). Mylan contends that the Maryland long-arm statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992), authorizes the district court to assert personal jurisdiction over Akzo. The purpose of the Maryland long-arm statute is to give the courts of the state personal jurisdiction over all out-of-state defendants who purposefully avail themselves of the privilege of conducting activities in Maryland, thus invoking the benefits and protections of Maryland law. See Novack v. National Hot Rod Ass’n, 247 Md. 350, 353-57, 231 A.2d 22, 24-26 (1967). The statute permits the Maryland courts to assert personal jurisdiction over (1) persons who directly conduct activities in Maryland; and (2) persons who conduct activities in Maryland through an agent. In the proof it adduced below, Mylan made no attempt to show that Akzo possessed direct contacts with Maryland at the time this action commenced. Under these circumstances, service of process on Akzo can be proper only if Akzo’s relationship with its third-tier subsidiary and co-defendant PBI is that of principal to agent. Mylan contends that such a relationship exists, because (1) as PBI’s parent corporation, Akzo controlled significant business activities of PBI in Maryland, warranting attribution of those activities to Akzo; (2) Akzo indirectly owns all the outstanding common stock of PBI, through its direct stock ownership of Akzo Pharma; and (3) certain allegedly criminal acts committed by PBI employees were performed with the intent to benefit" }, { "docid": "15845736", "title": "", "text": "is unable to establish that Bailey has personally had any more extensive contacts with Maryland than those set forth in his affidavit. Rather, Birrane argues that because Bailey is the president and principal shareholder of Master Collectors, the corporation’s Maryland contacts should be attributed to Bailey for jurisdictional purposes. Thus, he contends that Bailey is subject to jurisdiction under subsections (b)(1), (b)(2) and (b)(4) of Maryland’s long-arm statute. Md.Cts. & Jud.Proc.Code Ann. §§ 6 — 103(b)(1), (b)(2), (b)(4) (1989). Subsection (b)(1) applies to a person who transacts business in the state; subsection (b)(2) applies to a person who contracts to supply goods, services, etc., in the state; and subsection (b)(4) applies to a person who causes tortious injury in or outside of the state and who regularly does business in the state, engages in any other persistent course of conduct in the state or derives substantial revenue from goods, services, etc. used or consumed in the state. As a preliminary matter, it should be noted that the “fiduciary shield” doctrine, upon which the parties have focused substantial attention, is not relevant here. That doctrine has evolved to immunize from personal jurisdiction an individual who has had in-state contacts exclusively as a corporate agent. See, e.g., Umans v. PWP Services, Inc., 50 Md.App. 414, 420-21, 439 A.2d 21, 25 (1982); Zeman v. Lotus Heart, Inc., 717 F.Supp. 373, 375 (D.Md. 1989). Assuming the continued viability of the doctrine under Maryland law, it has no application where, as in the present case, an individual defendant has not himself had in-state contacts. Indeed, it is the very absence of such contacts by Bailey which prompts Birrane to argue that Master Collectors’ contacts with Maryland should be attributed to him for jurisdictional purposes. The attempted assertion of jurisdiction over Bailey fails for the more fundamental reason that the identities of Bailey and Masters Collectors cannot be equated with one another. An individual and a corporation of which that individual is the principal are separate legal entities. See, e.g., United States v. Van Diviner, 822 F.2d 960, 963 (10th Cir.1987). If grounds exist for “piercing" }, { "docid": "22054023", "title": "", "text": "Akzo, rendering Akzo hable for those acts in Maryland. The Maryland Court of Appeals, whose authoritative interpretations of the Maryland long-arm statute bind us, see Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), has adopted the so-called “agency” test in deciding whether to pierce the veil separating parent corporations from their subsidiaries for jurisdictional purposes. See Vitro Elec. v. Milgray Elec., Inc., 255 Md. 498, 501-03, 258 A.2d 749, 751-52 (1969). Originally advanced by Justice Brandeis in Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 335-38, 45 S.Ct. 250, 251-52, 69 L.Ed. 634 (1925), this test allows a court to attribute the actions of a subsidiary corporation to the foreign parent corporation only if the parent exerts considerable control over the activities of the subsidiary. Central to the exertion of such control, and thus to whether the corporate veil may be pierced, is whether significant decisions of the subsidiary must be approved by the parent. See Finance Co. of Am. v. BankAmerica Corp., 493 F.Supp. 895, 903-08 (D.Md.1980). Other relevant factors include whether the parent and the subsidiary maintain separate books and records, employ separate accounting procedures, and hold separate directors’ meetings. Vitro Elec., 258 A.2d at 753. Another consideration in deciding whether to pierce the corporate veil is the level of interdependence between parent and subsidiary; if the Maryland courts are to refrain from exercising jurisdiction over the parent, the subsidiary “[must] have some independent reason for its existence, other than being under the complete domination and control of another legal entity simply for the purpose of doing its act and bidding.” Harris v. Arlen Properties, Inc., 256 Md. 185, 200, 260 A.2d 22, 29 (1969). Finally, the court must find that Akzo knew, or should have known, that its conduct would have some impact in Maryland. Finance Co., 493 F.Supp. at 907. Mylan urged the district court to approve the exercise of personal jurisdiction over Akzo because the résumé of Jack Van Hulst, PBI’s chief executive officer, stated that he worked for Akzo at the time this action" }, { "docid": "22054024", "title": "", "text": "895, 903-08 (D.Md.1980). Other relevant factors include whether the parent and the subsidiary maintain separate books and records, employ separate accounting procedures, and hold separate directors’ meetings. Vitro Elec., 258 A.2d at 753. Another consideration in deciding whether to pierce the corporate veil is the level of interdependence between parent and subsidiary; if the Maryland courts are to refrain from exercising jurisdiction over the parent, the subsidiary “[must] have some independent reason for its existence, other than being under the complete domination and control of another legal entity simply for the purpose of doing its act and bidding.” Harris v. Arlen Properties, Inc., 256 Md. 185, 200, 260 A.2d 22, 29 (1969). Finally, the court must find that Akzo knew, or should have known, that its conduct would have some impact in Maryland. Finance Co., 493 F.Supp. at 907. Mylan urged the district court to approve the exercise of personal jurisdiction over Akzo because the résumé of Jack Van Hulst, PBI’s chief executive officer, stated that he worked for Akzo at the time this action commenced. In response to this assertion, Akzo submitted an affidavit in which Van Hulst denied ever having been employed by Akzo. The district court rejected Mylan’s proof, noting that it believed Van Hulst’s résumé was “puffed,” and concluded from Van Hulst’s affidavit that he was not employed by Akzo. Mylan now urges us to reverse the district court’s reliance on Van Hulst’s affidavit, arguing that in the absence of an evidentiary hearing it is entitled to have the court infer from Van Hulst’s résumé that Van Hulst was employed by Akzo. Although it is true that the plaintiff opposing a Rule 12(b)(2) motion to dismiss for lack of jurisdiction is entitled to have all reasonable inferences from the parties’ proof drawn in his favor, district courts are not required, as Mylan suggests, to look solely to the plaintiffs proof in drawing those inferences. As we stated in Combs v. Bakker, 886 F.2d 673 (4th Cir.1989), [i]n considering a [personal jurisdiction] challenge [in the absence of an evidentiary hearing], the court must construe all relevant pleading" }, { "docid": "18204916", "title": "", "text": "must be authorized under the state’s long-arm statute; and (2) the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment.” Carefirst, 334 F.3d at 396 (citation omitted). “With regard to the first requirement, [the district court] must accept as binding the interpretation of Maryland’s long-arm statute rendered by the Maryland Court of Appeals.” Id. (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 61 (4th Cir.1993)). Because Maryland courts have long held that the Maryland long-arm statute and the due process clause are coextensive, many federal courts have described the statutory inquiry as “merging” with the constitutional inquiry. Dring v. Sullivan, 423 F.Supp.2d 540, 544-45 (D.Md.2006) (citations omitted). The Maryland Court of Appeals has clarified, however, that it is still necessary to address the long-arm statute when analyzing personal jurisdiction. Id. at 545 (citing Mackey v. Compass Mktg., Inc., 391 Md. 117, 892 A.2d 479, 493 n. 6 (2006)). In some instances, constitutional due process may be satisfied even though the long-arm statute is not. Id. (citing Joseph M. Coleman & Assocs., Ltd. v. Colonial Metals, 887 F.Supp. 116, 119 (D.Md.1995)). Depending upon the relationship between the defendant and the forum state, a court may have either general or specific jurisdiction. General jurisdiction “arises where the defendant’s contacts with the forum are continuous, systematic, and fairly extensive.” Cole-Tuve, Inc. v. Am. Mach. Tools Corp., 842 F.Supp.2d 362, 366 (D.Md.2004) (citation omitted). In the absence of contacts sufficient for general jurisdiction, a court may exercise specific jurisdiction if: (1) the defendant purposely directed its activities toward residents of Maryland or purposely availed itself of the privilege of conducting activities in the state; (2) the plaintiffs cause of action arises out of or results from the defendant’s forum-related contacts; and (3) the forum’s exercise of personal jurisdiction in the case is reasonable, that is, consistent with “traditional notions of fair play and substantial justice.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Here, TCA does not contend that Vanhook’s activities are sufficiently extensive for general jurisdiction," }, { "docid": "22054035", "title": "", "text": "personal jurisdiction ... of courts of the State and the power to serve process of those courts to any person on federal enclaves ... within the State to the fullest extent permitted by the Constitution and laws of the United States”). .The Maryland long-arm statute reads: A court may exercise personal jurisdiction over a person, who directly or by an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply goods, food, services, or manufactured products in the State; (3) Causes tortious injury in the State by an act or omission in the State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State; (5) Has an interest in, uses, or possesses real property in the State; or (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing. Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992). . Although decisions of the United States District Court for the District of Maryland do not bind our deliberations, we note that over the past two decades that bench has handed down several thorough, scholarly examinations of corporate veil-piercing for jurisdictional purposes under the Maryland long-arm statute. See, e.g., Birrane v. Master Collectors, Inc., 738 F.Supp. 167, 169—70 (D.Md.1990); Translation Sys., Inc. v. Applied Technology Ventures, 559 F.Supp. 566, 567-68 (D.Md.1983); Finance Co. of Am. v. BankAmerica Corp., 493 F.Supp. 895, 903-08 (D.Md.1980); Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 786 (D.Md.1978); Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367, 370-78 (D.Md.1975), aff'd in part, rev'd in part on other grounds, 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923, 98 S.Ct." }, { "docid": "4986047", "title": "", "text": "to enable it to direct the subsidiary’s internal affairs. United States v. Scophony Corp., 333 U.S. 795, 814, 68 S.Ct. 855, 865, 92 L.Ed. 1091 (1948); Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367, 373 (D.Md.1975), rev’d. in part on other grounds, 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977). The pertinent question then, is whether, when viewing “the totality of the relationship” between JWA and USI, JWA has controlled USI to such an extent that this Court should pierce JWA’s corporate veil and subject it to suit here on the sole basis of USI’s Maryland business transactions. 391 F.Supp. at 371. First, it is clear that JWA’s 100% ownership of USI’s stock does not alone establish venue over JWA. Scophony, 333 U.S. at 814, 68 S.Ct. at 865; Caribe Trailer Systems v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. 711, 717 (D.D.C. 1979). The same is true of the interlocking boards of directors of the two companies. 475 F.Supp. at 718. Neither of these factors cited by plaintiffs help them establish venue unless JWA is also exercising the requisite degree of control over USI’s operations. As evidence of control, plaintiffs rely heavily on the requirement that JWA approve all USI capital expenditures of $50,000 or more. See plaintiffs’ Response at 9. Plaintiffs contend that such a requirement can mean nothing but that JWA controls USI’s business decisions. I cannot agree. In view of the fact that USI makes all operational decisions, such as pricing and marketing, without assistance from JWA (see affidavit of USI Executive Vice President Richard J. Bonin, Jr., at ¶¶3~11), JWA’s approval of major capital expenditures seems entirely consistent with its financial interest in USI as holder of its stock. In fact, the requirement for approval of major capital expenditures is not wholly unlike provisions in state corporation codes which require shareholder approval of certain extraordinary corporate acts. Therefore, in the absence of accompanying evidence of control over ordinary business operations, JWA’s approval of certain capital expenditures is not sufficient to establish venue. Nor is" }, { "docid": "16302193", "title": "", "text": "the state if he regularly does or solicits business, engages in any other persistent course of conduct in the state or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the state; (5) Has an interest in, uses, or possesses real property in the state; or (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the state at the time the contract is made, unless the parties otherwise provide in writing. Notwithstanding plaintiff’s argument to the contrary, subsections (b)(2), (b)(5), and (b)(6) are inapplicable to this action and jurisdiction, if it exists, must be found under either subsection (b)(1), (b)(3), or (b)(4). See generally, Auerbach, The “Long Arm” Comes to Maryland, 26 Md.L.Rev. 13 (1965). If any one of the subsections is satisfied, jurisdiction exists. Lawson v. Baltimore Paint & Chemical Corp., 298 F.Supp. 373, 377 (D.Md.1969). When interpreting the reach of the Maryland long arm statute, this court is bound by the interpretations of the Maryland Court of Appeals. Shealy v. Challenger Mfg. Co., 304 F.2d 102, 104 (4th Cir. 1962); Bennett v. Computers Intercontinental, Inc., 372 F.Supp. 1082, 1084 (D.Md.1974). The Fourth Circuit in Haynes v. James H. Carr, Inc., 427 F.2d 700, cert. denied, 400 U.S. 942, 91 S.Ct. 238, 27 L.Ed.2d 245 (1970), delineated the analysis to be undertaken in cases involving long arm jurisdiction. There the court stated: Generally, the application of the long arm statute involves two steps. It is necessary to determine first whether the statute permits service of process on the nonresident defendant, and second, whether service under the statute violates the Due Process Clause of the federal constitution. 427 F.2d at 703. The court will examine the facts as they relate to each defendant under each subsection of section 6 — 103(b) in order to determine if jurisdiction is present. Subsection (b)(1) The Maryland Court of Appeals in Mohamed v. Michael, 279 Md. 653, 370 A.2d 551 (1977), has held that personal jur isdiction in an action alleging abuse" }, { "docid": "4404331", "title": "", "text": "dismiss, which has been briefed. Although the Court warned counsel that the present motion would be treated as a motion for summary judgment because it was accompanied by materials outside the pleading, the Court has, in the event, treated it as a motion to dismiss under Rule 12(b)(6), by confining its analysis to the legal sufficiency of the allegations of the complaint. No oral hearing on the motion is needed. Local Rule 105.6, D.Md. The motion to dismiss will be granted for the reasons set forth below. Keeping in mind that the Court must take the allegations of the complaint as true, it still must be dismissed if it fails to allege essential elements of the claims asserted or is otherwise not maintainable as a matter of law. First, the Court agrees that the complaint alleges no cognizable claims against MNC Financial, nor does it allege any conduct that would justify piercing the corporate veil between MNB and MNC Financial under settled principles of law. Cf. Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367, 371 (D.Md.1975), aff'd. in part and rev’d. in part on other grounds, 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977). In that the complaint fails to state any meritorious claim, though, this question is rather academic. The Court begins its analysis of defendants’ first issue, res judicata, by noting that, although it is on appeal, the judgment rendered in Baltimore County is entitled in this Court to receive full faith and credit, i.e., the same preclusive effect as it would be given in a state court of Maryland. Confessed judgments are judgments on the merits, entitled to preclusive effect under Maryland law, see Boyce v. Plitt, 274 Md. 333, 335-36, 335 A.2d 101 (1975), and the fact that an appeal is lodged does not necessarily disturb the finality of the judgment. The finality of the Baltimore County judgment, however, does not, under Maryland law, preclude the plaintiff from maintaining this action. In Rowland v. Harrison, 320 Md. 223, 577 A.2d 51 (1990), the Court of" }, { "docid": "3798823", "title": "", "text": "laws of the State of Maryland without reference to its conflict of laws and [sic] principles.” It stipulates, inter alia, that in return for an initial fee and monthly payments, Madison would receive the benefit of using the Clarion mark. As might be expected, the agreement is a form contract that includes an integration clause providing that the license agreement is the entire agreement. Contemporaneously with the execution of the license agreement, the individual shareholders of Madison executed a Guaranty in favor of Choice. Under the Guaranty, the individual defendants “unconditionally and irrevocably ... guarantee .,. that [Madison] ... will perform throughout the term of the License Agreement each and every covenant, payment, or obligation” the corporation promised to perform. The Guaranty also recites, in part, that “[i]f legal action is taken to enforce this Guaranty, such action may be maintained alone or joined with any action or other proceeding against” the corporation. Madison began operating its hotel under the Clarion name in June 1990. It allegedly breached its contract with Choice sometime in 1997 by failing to maintain its payments. Following the alleged breach, Choice gave Madison notice of its intent to terminate the agreement in February 1998. Choice instituted this action thereafter. (ii) Once a defendant raises a Rule 12(b)(2) defense, the plaintiff bears the burden of proving that the court can exercise personal jurisdiction over the defendant, Nichols v. G.D. Searle & Co., 783 F.Supp. 233, 237 (D.Md.1992), aff'd, 991 F.2d 1195 (4th Cir.1993), by a preponderance of the evidence. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993); Cape v. von Maur, 932 F.Supp. 124, 125 (D.Md.1996). Plaintiff must show both that Maryland’s Long-Arm Statute confers jurisdiction and that the exercise of jurisdiction does not offend due process considerations. Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir.1985). In recent years, Maryland’s appellate courts and the United States Court of Appeals for the Fourth Circuit have shown a willingness to collapse those two inquiries into a single analysis, since the Maryland Long-Arm Statute is to be interpreted as extending to" }, { "docid": "4986046", "title": "", "text": "affidavit at ¶ 6. As this affidavit is uncontroverted, the Court must conclude that plaintiffs are mistaken. I thus find that none of JWA’s supposed direct contacts with this District, nor the combination thereof, are sufficient to establish venue in this Court. B. JWA’s Ties to the District through its Subsidiary, USI It is undisputed that USI transacts substantial business in this District. In arguing that JWA should be subject to suit here as the parent corporation of USI, counsel for the plaintiffs state “[t]he preponderence of the evidence shows that since Johnson Wax’ acquisition of Scubapro, Johnson Wax has taken over control of the actual management of Scubapro.” Plaintiffs’ Response at 10. Plaintiffs’ evidence of JWA’s control over USI consists mainly of JWA’s ownership of all USI stock, interlocking di rectorships, and requirements that JWA be informed of or approve certain USI activities. Plaintiffs are correct that, under § 12, the test for venue over a parent whose subsidiary conducts business in the district is whether the parent exerts sufficient control over the subsidiary to enable it to direct the subsidiary’s internal affairs. United States v. Scophony Corp., 333 U.S. 795, 814, 68 S.Ct. 855, 865, 92 L.Ed. 1091 (1948); Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367, 373 (D.Md.1975), rev’d. in part on other grounds, 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977). The pertinent question then, is whether, when viewing “the totality of the relationship” between JWA and USI, JWA has controlled USI to such an extent that this Court should pierce JWA’s corporate veil and subject it to suit here on the sole basis of USI’s Maryland business transactions. 391 F.Supp. at 371. First, it is clear that JWA’s 100% ownership of USI’s stock does not alone establish venue over JWA. Scophony, 333 U.S. at 814, 68 S.Ct. at 865; Caribe Trailer Systems v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. 711, 717 (D.D.C. 1979). The same is true of the interlocking boards of directors of the two companies. 475 F.Supp. at 718. Neither of" }, { "docid": "1761897", "title": "", "text": "applicable state statute confers jurisdiction, and (2) whether the service and the attendant exercise of personal jurisdiction comport with the constitutional requirements of the Due Process Clause. Snyder v. Hampton Industries, Inc., 521 F.Supp. 130, 135 (D.Md.1981); Craig v. General Finance Corp. of Illinois, 504 F.Supp. 1033 (D.Md. 1980). The Maryland Long Arm Statute, Md. Cts. & Jud.Proc.Code Ann. § 6-103, defines the circumstances in which the state courts and, in diversity cases, federal courts may exercise jurisdiction over a person. In this suit, the plaintiff has asserted that jurisdiction exists over Toshiba under subsection (b)(1), (b)(4), or (b)(6) of the Maryland Long Arm Statute, set forth be-' low: “(a) Condition. — If jurisdiction over a person is based solely upon this section, he may be sued only on a cause of action arising from any act enumerated in this section. (b) In general. — A court may exercise personal jurisdiction over a person, who directly or by an agent: (1) Transacts any business or performs any character of work or service in the State; ... (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State; (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.” The Maryland Court of Appeals has stated that the intent of the legislature in enacting the long arm statute was to expand the exercise of personal jurisdiction to the extent permitted by the Due Process Clause. See Snyder, 521 F.Supp. at 136 (and cases cited therein). Not all of the subsections of the long arm statute are coterminous with due process, however. Beaty v. M.S. Steel Co., 401 F.2d 157 (4th Cir.1968), cert. denied, 393 U.S. 1049," }, { "docid": "15845737", "title": "", "text": "focused substantial attention, is not relevant here. That doctrine has evolved to immunize from personal jurisdiction an individual who has had in-state contacts exclusively as a corporate agent. See, e.g., Umans v. PWP Services, Inc., 50 Md.App. 414, 420-21, 439 A.2d 21, 25 (1982); Zeman v. Lotus Heart, Inc., 717 F.Supp. 373, 375 (D.Md. 1989). Assuming the continued viability of the doctrine under Maryland law, it has no application where, as in the present case, an individual defendant has not himself had in-state contacts. Indeed, it is the very absence of such contacts by Bailey which prompts Birrane to argue that Master Collectors’ contacts with Maryland should be attributed to him for jurisdictional purposes. The attempted assertion of jurisdiction over Bailey fails for the more fundamental reason that the identities of Bailey and Masters Collectors cannot be equated with one another. An individual and a corporation of which that individual is the principal are separate legal entities. See, e.g., United States v. Van Diviner, 822 F.2d 960, 963 (10th Cir.1987). If grounds exist for “piercing the corporate veil” generally, the corporate veil can be pierced for jurisdictional purposes. Compare Holfield v. Power Chemical Co., Inc., 382 F.Supp. 388, 393 (D.Md.1974) (grounds to pierce corporate veil) with Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 786 (D.Md.1978) (no grounds to pierce veil). Absent such grounds, however, there is no basis whatsoever for holding that merely because a corporation transacts business in the state, contracts to supply goods or services in the state or has other substantial contacts with the state, an individual who is its principal should be deemed to have engaged in those activities personally. It certainly cannot be presumed that in enacting the long-arm statute, the Maryland General Assembly intended a consequence so at variance with the most basic tenets of corporation law. Moreover, if the General Assembly did have such an intent, its action would have been unconstitutional. An individual who has chosen simply to transact business in a state through a valid and viable corporation has not necessarily “purposefully avail[ed]” himself of “the privilege of conducting activities" }, { "docid": "3798824", "title": "", "text": "by failing to maintain its payments. Following the alleged breach, Choice gave Madison notice of its intent to terminate the agreement in February 1998. Choice instituted this action thereafter. (ii) Once a defendant raises a Rule 12(b)(2) defense, the plaintiff bears the burden of proving that the court can exercise personal jurisdiction over the defendant, Nichols v. G.D. Searle & Co., 783 F.Supp. 233, 237 (D.Md.1992), aff'd, 991 F.2d 1195 (4th Cir.1993), by a preponderance of the evidence. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993); Cape v. von Maur, 932 F.Supp. 124, 125 (D.Md.1996). Plaintiff must show both that Maryland’s Long-Arm Statute confers jurisdiction and that the exercise of jurisdiction does not offend due process considerations. Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir.1985). In recent years, Maryland’s appellate courts and the United States Court of Appeals for the Fourth Circuit have shown a willingness to collapse those two inquiries into a single analysis, since the Maryland Long-Arm Statute is to be interpreted as extending to constitutional limits. See Camelback Ski Corp. v. Behning, 307 Md. 270, 274, 513 A.2d 874 (1986), vacated and remanded, 480 U.S. 901, 107 S.Ct. 1341, 94 L.Ed.2d 512 (1987), opinion on remand, 312 Md. 330, 539 A.2d 1107, cert. denied, 488 U.S. 849, 109 S.Ct. 130, 102 L.Ed.2d 103 (1988); Stover v. O’Connell Assoc., Inc., 84 F.3d 132, 135-36 & n* (4th Cir.), cert. denied, — U.S. —, 117 S.Ct. 437, 136 L.Ed.2d 334 (1996) ; cf. ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir.1997) (construing South Carolina Long-Arm Statute), cert. denied, — U.S. —, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998). In assessing the sufficiency of a defendant’s contacts with the forum state, the “constitutional touchstone” is whether the contacts were “purposefully established” by the defendant such that he “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, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted). The Supreme Court has drawn a" }, { "docid": "22054018", "title": "", "text": "F.Supp. 1053, 1077 n. 41 (D.Md.1991). Shortly after the Maryland district court’s action, Akzo renewed its motion to dismiss for lack of personal jurisdiction. After hearing oral argument on Akzo’s motion, the district court read into the record a memorandum order holding that because it could not assert personal jurisdiction over Akzo, it was required to dismiss Mylan’s complaint as to the Dutch corporation. See Mylan Labs., Inc. v. Akzo, N.V., No. R-90-1069, at 15 (D.Md. June 19, 1992) (oral opinion). In so ruling, the court relied upon the following findings of fact: (1) Akzo and PBI have no ownership interest in each other; (2) PBI is a third-tier subsidiary corporation of Akzo, being owned by Akzo Pharma, Inc. (“Akzo Pharma”), which in turn is owned by Akzo; (3) PBI and Akzo have no officers and directors in common; (4) Akzo is not authorized to conduct business in Maryland or anywhere else in the United States; (5) Akzo is not actually present in Maryland; and (6) the corporate functions of Akzo and PBI are rigidly separated. Id. at 1-15 (oral ruling). Based upon these findings, the court reasoned that the Maryland long-arm statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992), which Mylan had asserted as supporting jurisdiction, did not authorize it to exercise personal jurisdiction over Akzo. Id. at 15. The court therefore dismissed Akzo from the action, and Mylan took this appeal. Mylan presents two questions for decision: (1) whether the district court erred as a matter of law in determining that it could not assert personal jurisdiction over Akzo; and (2) whether the district court abused its discretion in denying Mylan’s motion to take discovery on the personal jurisdiction issue. We consider these issues in turn. II When a court’s personal jurisdiction is properly challenged by motion under Federal Rule of Civil Procedure 12(b)(2), the jurisdictional question thereby raised is one for the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989); Dowless v. Warren-Rupp Houdailles, Inc.," }, { "docid": "1761898", "title": "", "text": "... (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State; (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.” The Maryland Court of Appeals has stated that the intent of the legislature in enacting the long arm statute was to expand the exercise of personal jurisdiction to the extent permitted by the Due Process Clause. See Snyder, 521 F.Supp. at 136 (and cases cited therein). Not all of the subsections of the long arm statute are coterminous with due process, however. Beaty v. M.S. Steel Co., 401 F.2d 157 (4th Cir.1968), cert. denied, 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969). Subsections (b)(3) and (b)(4) were intended by the legislature to allow the exercise of personal jurisdiction within more narrow limits than the Due Process Clause would tolerate. Craig, 504 F.Supp. at 1036. With the exceptions of subsections (b)(3) and (b)(4), in Maryland the two-fold analysis mentioned above merges since “both the reach of the Maryland statute and the constitutional validity of the exercise of jurisdiction pursuant thereto are measured by the same standard.” Carter v. Massey, 436 F.Supp. 29, 33 (D.Md.1977), quoted in Batzer v. Kawaski Motor Corp., No. R-80-1591 at 3 (D.Md., Dec. 15, 1981). The Due Process Clause obviously limits the extent to which a federal district court can exercise personal jurisdiction over an individual defendant. Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Only where minimum contacts between the defendant and the forum state exist may a court exercise personal jurisdiction over a nonresident. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90" } ]

[ { "docid": "5304142", "title": "", "text": "Recommendation, plaintiffs have failed to respond. . As discussed in detail infra, by Congress' enactment of the Judicial Improvements Act in 1990, the concepts of \"pendent\" and “ancillary” jurisdiction no longer exist. Congress has defined the scope of supplemental jurisdiction that federal district courts may exercise, and the Court will discuss the concept accordingly. . The Supreme Court has long held that § 1332 requires “complete diversity,” that is, every plaintiff must be of diverse citizenship from every defendant. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). . See, e.g., Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445 (1991); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943 (1991); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963 (1991); Karen Nelson Moore, The Supplemental Jurisdiction Statute: An Important But Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31 (1992). . The reason that this question is so awkwardly phrased is that, strictly speaking, there is no Supreme Court case on point. The cases which addressed the issue of pendent party jurisdiction (Kroger, Aldinger) did so in the context of whether jurisdiction could be exercised over a nondi-verse party, not a party who lacked the requisite amount in controversy. As for Zahn, it concerned a class action situation and, in addition, the Court did not hold that the district court could not exercise pendent party jurisdiction over plaintiffs with insufficient amounts in controversy, but rather that those plaintiffs could not aggregate their claims to total the requisite amount. Indeed, in his dissent, Justice Brennan indicated that \"[o]nce jurisdiction has attached to the 'action,' ... ancillary jurisdiction supports a determination that [the claims of nonappearing class members] may be entertained.” 414 U.S. at 305, 94 S.Ct. at 514 (Brennan, J., dissenting). . See Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1285 n." } ]

[ { "docid": "14122268", "title": "", "text": "behalf of absent class members.\" (Mem.Supp.Remand, at 14.) The Court disagrees. The inclusion of \"joinder” and \"intervention” in § 1367(a) merely indicates that whatever jurisdiction is established therein, it exists as to claims brought by the original parties to the litigation and to those entering the case through joinder or intervention of additional parties. . The Defendants buttress their assertion that Congress unequivocally failed to include Rule 23 as an exception in § 1367(b) by citing an article that appeared as part of the academic debate swirling around the creation of § 1367 and its effects on Zahn. See, Thomas D. Rowe, Jr., Stephen B. Burbank and Thomas M. Mengler, Compounding or Creating Confusion about Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943 (1991). In the article, the authors, all of whom assisted in drafting § 1367, state that \"the legislative history was an attempt to correct [Congress'] oversight\" in failing to include Rule 23 as an exception to supplemental jurisdiction in § 1367(b). Id. at 960 n. 90. The Defendants also cite Garza v. National American Ins. Co., 807 F.Supp. 1256 (M.D.La.1992), and 1 Herbert B. Newberg, Newberg on Class Actions, § 6.11, at 6-48 through 6-49 (1992), as supportive of their position. In Garza, which was not a diversity class action, the court concluded that § 1367 had legislatively overruled Zahn. 807 F.Supp. at 1258 n. 6. . Although Dana Point was not a class action, the court succinctly stated the prevailing view that § 1367 did not affect the rule in Zahn. The remaining decisions cited herein are all class actions. . No circuit court of appeals has yet ruled on the controversy at issue here. The Court notes, however, that in Watson v. Shell Oil Co., 979 F.2d 1014, 1021 (5th Cir.1992), reh’g en banc granted, 990 F.2d 805 (5th Cir.1993), the Fifth Circuit, in passing on an interlocutory appeal from certain class certification orders, stated the rule in Zahn without mentioning the existence of § 1367. In addition, the Third Circuit, in Packard v. Provident Nat’l Bank, 994 F.2d 1039 (3d Cir.)," }, { "docid": "22231170", "title": "", "text": "the conflict among authorities on our question, but declined to resolve it. See 994 F.2d 1039, 1045-46 n. 9 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 440, 126 L.Ed.2d 373 (1993). . Compare Henkel v. ITT Bowest Corp., 872 F.Supp. 872, 877 (D.Kan.1994) (holding that § 1367 did not overrule Zafen); Aspe Arquitectos, S.A. de C.V. v. Jamieson, 869 F.Supp. 593, 595 (N.D.Ill.1994) (same); Dirosa v. Grass, No. 94-2551, 1994 WL 583276, at *2, 1994 U.S.Dist. LEXIS 15100, at *7 (E.D.La. Oct. 19, 1994) (same); Kaplan v. Mentor Corp., No. 94-6249, 1994 U.S.Dist. LEXIS 15779, at *3 (N.D.Ill. Oct. 17, 1994) (same), supplemented, 1994 U.S.Dist. LEXIS 15410 (E.D.Ill. Oct. 24, 1994); Benninghoff v. Tolson, No. 94-2903, 1994 WL 519745, at *4, 1994 U.S.Dist. LEXIS 13428, at *11 (E.D.Pa. Sept. 22, 1994) (same); Clement v. Occidental Chem. Corp., Nos. 94—1315, 94-1316, 94-1317, 1994 WL 479155, at *4, 1994 U.S.Dist.LEXIS 12387, at *19 (E.D.La. Aug. 30, 1994) (same); Potash, 866 F.Supp. at 414 (same); North Am. Mechanical Servs. Corp. v. Hubert, 859 F.Supp. 1186, 1188-89 (C.D.Ill.1994) (same); Duet v. Lawes, No. 94-0739, 1994 WL 151095, at *2, 1994 U.S.Dist. LEXIS 4755, at *4-5 (E.D.La. Apr. 7, 1994) (same); Riverside Transp., Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 456 (M.D.La.1994) (same); Fink v. Heath, No. 91-2982, 1991 WL 127664, at *3, 1991 U.S.Dist. LEXIS 9182, at *7-8 (N.D.Ill. July 8, 1991) (same); and Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1302 (N.D.Ill.1991) (same) with Lindsay v. Kvortek, 865 F.Supp. 264, 276 (W.D.Pa.1994) (determining that § 1367 supersedes Zahn; case did not involve class action); Patterson Enters., Inc. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154 (D.Kan.1993) (same); and Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1258 & n. 6 (M.D.La.1992) (same). . The impressive array of Professors Burbank, Mengler, and Rowe has observed that ‘‘[i]t would have been better had the statute dealt explicitly with this problem, and the legislative history was an attempt to correct the oversight.” Rowe et al., supra, 40 Emory L.J. at 960 n. 90. They have noted that the supplemental jurisdiction statute" }, { "docid": "10966949", "title": "", "text": "claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. . See generally, Joan Steinman, Section 1367— Another Party Heard From, 41 Emory L.J. 85, 102-3 (1992) (suggesting that the courts interpret the Act to legislatively overrule Zahn); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 485-86 (1991) (stating that the plain language of the Act overrules Zahn, but contradicts the legislative history); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991) (same). Contra Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 949 n. 27, 960 n. 90 (1991) (authors who drafted the Act stating that the legislative history was “an attempt to correct an oversight” in the Act that led some commentators to assert that the Act overruled Zahn ). .In Finley the Supreme Court prevented a plaintiff who had satisfied original subject matter jurisdiction under the Federal Tort Claims Act from adding a transactionally-related state claim against a different, non-diverse defendant. . See, e.g. Lindsay v. Kvortek, 865 F.Supp. 264 (W.D.Pa.1994) (determining based on a plain language reading of the statute that Section 1367 legislatively overrules Zahn; case did not involve a class action); Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1258 (M.D.La.1992) (same); Patterson Enter., Inc. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154 (D.Kan.1993) (same); Booty v. Shoney’s, Inc., 872 F.Supp. 1524 (E.D.La.1995) (holding that if the requirements of § 1367(a) are met and the case does not fit one of the exceptions enumerated in (b), the district court has jurisdiction; case was not a class action). . See also Riverside Transp., Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 455-56 (M.D.La.1994); Pierson v. Perrier," }, { "docid": "22859273", "title": "", "text": "(1991) (academics who assisted in drafting section 1367 assert that legislative history indicates no intent to overrule Zahn); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emoiy L.J. 445, 485-86 (1991) (expressing regret that intent not to overrule Zahn is \"buried in the legislative history”); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction'? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991) (admitting that the statute could have been better drafted); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991) (asserting that statutory language overrules Zahn and doubting that legislative history can save it); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31, 56-58 (1992) (indicating that, notwithstanding the legislative history, the language of section 1367 tracks closely the language suggested by the Federal Courts Study Committee, which, according to the author, expressed a desire to overrule Zahn); Joan Steinman, Section 1367 — Another Party Heard From, 41 Emory L.J. 85, 102-04 (1992) (similar); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute — A Constitutional and Statutory Analysis, 24 Ariz.St.L.J. 849, 973 (1992) (section 1367 should not be interpreted as overruling Zahn ). To date, neither the Supreme Court nor any United States Court of Appeals has decided this issue. Several district courts, however, have refused to hold that section 1367 overruled Zahn in a class action context. Mayo v. Key Fin. Servs., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Averdick v. Republic Fin. Servs., Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Benfield v. Mocatta Metals Corp., No. 91 Civ. 8255 (LJF), 1993 WL 148978, 1993 U.S.Dist. LEXIS 5856 (S.D.N.Y. May 5, 1993); Bradbury v. Robertson-Ceco Corp., No. 92 C 3408, 1992 WL 178648, 1992 U.S.Dist. LEXIS 10888 (N.D.Ill. July 22, 1992). Because no plaintiff alleges more than $50,000 in compensatory damages and punitive damages may not be recovered against a trustee under Pennsylvania" }, { "docid": "10966948", "title": "", "text": "On August 25, 1995, Defendant CPC filed Notices of Removal in both actions. On August 30, 1995, Defendant CPC filed Notices of Joinder in Staley’s Notices of Removal. . On September 15, 1995, Plaintiff Goings joined in the Response by Plaintiff Borgeson to the OSC, supporting remand to state court. . Because the Court finds this issue well briefed by the parties, the Court has taken the matter under submission. . In their Notice of Removal, Defendant STALEY states that Defendant ADM is a Delaware corporation, when in fact, Defendant ADM is a Minnesota corporation. Notice of Removal, p. 4, ¶ 7. However, this misstatement is irrelevant for the purposes of determining diversity jurisdiction. . 28 U.S.C. § 1367(b) states: In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this tide, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. . See generally, Joan Steinman, Section 1367— Another Party Heard From, 41 Emory L.J. 85, 102-3 (1992) (suggesting that the courts interpret the Act to legislatively overrule Zahn); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 485-86 (1991) (stating that the plain language of the Act overrules Zahn, but contradicts the legislative history); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991) (same). Contra Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 949 n. 27, 960 n. 90 (1991) (authors who drafted the Act stating" }, { "docid": "14122258", "title": "", "text": "decisions in the class action context that “a close look at both the language of [§ 1367] and its legislative history teaches that the new provision does not change the old law in this area at all.” Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1301 (N.D.Ill.1991); see Riverside Transp., Inc. v. Bellsouth Telecomm., Inc., 847 F.Supp. 453, 455-56 (M.D.La.1994); Stoumen v. Public Serv. Mut. Ins. Co., No. Civ. A 94-0233, 1994 WL 111355, at *2 (E.D.Pa. Mar. 30, 1994); LeRoy Cattle Co. v. Fina Oil & Chem. Co., No. Civ. A 93-1286-MLB, 1994 WL 151105, at *13 (D.Kan. Mar. 2, 1994); Benfield v. Mocatta Metals Corp., No. 91 Civ. 8255, 1993 WL 148978, at *4 (S.D.N.Y. May 5, 1993); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180, 181 n. 1 (D.Mass.1993); Mayo v. Key Finan. Serv., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Averdick v. Republic Finan. Serv., Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Bradbury v. Robertson-Ceco Corp., No. 92-C-3408, 1992 WL 178648, at *2 (N.D.Ill. July 22, 1992); see also North American Mechanical Serv. Corp. v. Hubert, 859 F.Supp. 1186, 1188 (C.D.Ill.1994) (non-class action); Leung v. Checker Motor Corp., No. 93-C-2704, 1993 WL 515470, at *2 (Dec. 7, 1993) (same). Contra Patterson Enterp. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154-55 (D.Kan.1993) (nonelass action); Garza v. National American Ins. Co., 807 F.Supp. 1256, 1258 n. 6 (M.D.La.1992) (non-class action) (same). In light of the superior numerical strength of the pro -Zahn faction, the Defendants’ supposedly new weapon — EDF—cannot prevent their defeat. First, the Court simply does not agree that EDF, in any way, clarified courts’ proper use of legislative history in interpreting legislative intent; rather, EDF represents the specific application of an established canon of statutory interpretation — that a court may not look to legislative history to imply an intent contrary to that contained in clear and unambiguous legislation — to a statute that was similar in form to section 1367(b) — both contain enumerated exceptions to a statutory rule. Second, al though it never specifically said it, the result in EDF followed from the" }, { "docid": "14122259", "title": "", "text": "American Mechanical Serv. Corp. v. Hubert, 859 F.Supp. 1186, 1188 (C.D.Ill.1994) (non-class action); Leung v. Checker Motor Corp., No. 93-C-2704, 1993 WL 515470, at *2 (Dec. 7, 1993) (same). Contra Patterson Enterp. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154-55 (D.Kan.1993) (nonelass action); Garza v. National American Ins. Co., 807 F.Supp. 1256, 1258 n. 6 (M.D.La.1992) (non-class action) (same). In light of the superior numerical strength of the pro -Zahn faction, the Defendants’ supposedly new weapon — EDF—cannot prevent their defeat. First, the Court simply does not agree that EDF, in any way, clarified courts’ proper use of legislative history in interpreting legislative intent; rather, EDF represents the specific application of an established canon of statutory interpretation — that a court may not look to legislative history to imply an intent contrary to that contained in clear and unambiguous legislation — to a statute that was similar in form to section 1367(b) — both contain enumerated exceptions to a statutory rule. Second, al though it never specifically said it, the result in EDF followed from the Supreme Court’s conclusion that the amendment at issue, which was (a) part of a “comprehensive” statute and was itself comprised of precisely defined terms which did not encompass the term at issue, see id. at -, 114 S.Ct. at 1590, and (b) “carefully constructed,” id. at -, 114 S.Ct. at 1592, was clear and unambiguous. See id. at -, 114 S.Ct. at 1597 (Stevens, J., dissenting) (“[t]he relevant statutory text is not as unambiguous as the Court asserts”). A careful review of section 1367 itself, as well as the decisions cited above, teaches that section 1367 does not have the same character. In summary, the Court stands with the pro -Zahn faction and concludes that Zahn retains its viability as a rule of subject matter jurisdiction in a diversity class action. Consequently, the claims of each and every member of the plaintiff class must individually satisfy the matter in controversy threshold in section 1332(a). The Defendants concede that not all of the class members do. The Defendants, therefore, have failed to meet their burden of" }, { "docid": "22785729", "title": "", "text": "multiple reasons to expect that the rulings of Zahn v. International Paper Co., requiring allegations that each class member satisfied jurisdictional amount requirements in diversity actions, have been legislatively bypassed.”). Others have felt that § 1367 is constrained by prior Supreme Court decisions, and does not expand the courts’ jurisdictional grant. Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About-Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (Fall 1991) (acknowledging that while a facial construction of § 1367 would appear to overrule Zahn, “the legislative history was an attempt to, correct the oversight”); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute — A Constitutional And Statutory Analysis, 24 Ariz. St. L.J. 849, 973 (Fall 1992)(“[Section] 1367 .should be intér-preted as effecting no change in the prior practice and continuing undisturbed the rule of Zahn.”). Regardless of Congress’s intent with respect to Zahn, it is clear that § 1367 does not abrogate the rule of law established in Gibbs, and thus any exercise of supplemental jurisdiction must meet the requirements of Article Ill’s “case or controversy” standard. See H.R.Rep. No. 101-734 at n. 15 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6875 n. 15 (stating that § 1367(a) “codifies the scope of supplemental jurisdiction first articulated by the Supreme Court in United Mine Workers v. Gibbs ”); New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1505 (3d Cir.1996) (“The Supreme Court delineated the modern constitutional bounds of pendent [now referred to as supplemental] jurisdiction in United Mine Workers v. Gibbs.”); Oakley, 24 U.C. Davis L.Rev. at 764 (noting that under § 1367, the district court’s exercisé of supplemental jurisdiction “extends to the limits of Article III, thus ratifying and incorporating the constitutional analysis of United Mine Workers v. Gibbs ”). There is no dispute the district court had jurisdiction over the federal securities claims alleged in the Second Amended Consolidated Complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citing Gully v. First National Bank, 299 U.S." }, { "docid": "17072263", "title": "", "text": "put together a post-hoc legislative history stating that § 1367(a) was not intended to overrule Zahn. See H.R.Rep. No. 101-734, at 29 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6875 n. 17. Three drafters noted the effort with admirable candor: [0]n its .face, section 1367 does not appear to forbid supplemental jurisdiction over claims of class members that do not satisfy section 1332’s jurisdictional amount requirement, which would overrule Zahn .... [There is] a disclaimer of intent to accomplish this result in the legislative history.... It would have been better had the statute dealt explicitly with this problem, and the legislative history was an attempt to correct the oversight. Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating- Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991). In reading the clear language of the statute in the same way that the esteemed drafters of § 1367(a) do, we reach the conclusion they concede to be inescapable. We have no idea whether, as the drafters intimate, Congress made a “mistake” or “oversight” here. It is not implausible to believe that the legislature desired a single class action, even one in diversity, to be resolved in a single judicial setting. Additionally, Congress may have, rightly or wrongly, imputed a bias in state court against certain out-of-state defendants which it sought to counteract by fortifying diversity jurisdiction. The point is’ that Congress can take such steps. And in exercising its constitutional prerogatives, Congress is even free to incur the displea sure of the bench. “Mistake” or not, we know that it is not our job to “correct” what Congress has done. The illegitimacy of the judiciary’s usurping such a legislative function, either overtly or through strained statutory construction, is self-evident. V. It seems appropriate in conclusion to repair to the simplicity of the statute. Louise Rosmer is of diverse citizenship and her claim exceeds the amount in controversy requirement of 28 U.S.C. § 1332. Consequently, federal courts have original jurisdiction over it. Likewise, due to § 1367, federal courts have supplemental" }, { "docid": "22859272", "title": "", "text": "argument is made that 28 U.S.C. § 1367(a) provides supplemental jurisdiction over diversity class members who do not individually meet the amount in controversy requirement, thus legislatively overruling Zahn. The authors of Moore's have retreated from their position based on the statute's legislative history, which states that section 1367 was not intended to affect jurisdictional requirements in diversity-based class actions and cites Zahn. 1 Moore et ah, supra, ¶ 0.97[5], at 927 (1993); see also H.R.Rep. No. 734, P.L. 101-650, 101st Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.N. 6802, 6860, 6875. Newberg, on the other hand, discounts this history, stating that because the statute is unambiguous on its face, legislative history may not be resorted to according to the Supreme Court's decision in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). This question has spawned a considerable academic debate as well. See Thomas M. Mengler, Stephen B. Burbank & Thomas D. Rowe, Jr., Congress Accepts Supreme Court’s Invitation to Codify Supplemental Jurisdiction, 74 Judicature 213, 215 (1991) (academics who assisted in drafting section 1367 assert that legislative history indicates no intent to overrule Zahn); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emoiy L.J. 445, 485-86 (1991) (expressing regret that intent not to overrule Zahn is \"buried in the legislative history”); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction'? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991) (admitting that the statute could have been better drafted); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991) (asserting that statutory language overrules Zahn and doubting that legislative history can save it); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31, 56-58 (1992) (indicating that, notwithstanding the legislative history, the language of section 1367 tracks closely the language suggested by the Federal Courts Study Committee," }, { "docid": "22785728", "title": "", "text": "jurisdiction, proriding for jurisdiction “in any civil action of which the district courts have original jurisdiction” over “all other claims that are' so related ... that they form part of the same case or controversy under Article III.\" 28 U.S.C. 1367(a). The statute explicitly included “claims that involve the joinder or intervention of additional parties.” Id. The enactment of § 1367 has elicited a strong reaction from legal scholars. Some have argued that Congress intended § 1367 to be interpreted broadly, and hoped to encourage the federal courts to hear claims which might otherwise have fallen outside of their reach. See John B. Oakley, Recent Statutory Changes in the Late of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 U.C. Davis' L.Rev. 735, 766 (Spring 1991) (“By the juxtaposition of sections 1367(a) and 1367(c) Congress appears to have created a strong presumption in favor of the exercise of supplemental jurisdiction.”); 2 Herbert B. New-berg and Alba Conte, Newberg on Class Actions, § 6.11, at 6-45 (3d ed.- 1992) (“[T]here are multiple reasons to expect that the rulings of Zahn v. International Paper Co., requiring allegations that each class member satisfied jurisdictional amount requirements in diversity actions, have been legislatively bypassed.”). Others have felt that § 1367 is constrained by prior Supreme Court decisions, and does not expand the courts’ jurisdictional grant. Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About-Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (Fall 1991) (acknowledging that while a facial construction of § 1367 would appear to overrule Zahn, “the legislative history was an attempt to, correct the oversight”); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute — A Constitutional And Statutory Analysis, 24 Ariz. St. L.J. 849, 973 (Fall 1992)(“[Section] 1367 .should be intér-preted as effecting no change in the prior practice and continuing undisturbed the rule of Zahn.”). Regardless of Congress’s intent with respect to Zahn, it is clear that § 1367 does not abrogate the rule of law established in Gibbs, and thus any exercise" }, { "docid": "22231167", "title": "", "text": "shall include claims that involve the joinder or intervention of additional parties. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. . See, e.g., 1 James W. Moore et al., Moore’s Federal Practice, ¶ 0.97[5], at 928 (2d ed. 1994); 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 6.11, at 6-48 (3d ed. 1992); Joan Steinman, Section 1367 — Another Party Heard From, 41 Emory L.J. 85, 103 (1992); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991). . See Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991). Professors Rowe, Burbank, and Mengler all had a hand in crafting the supplemental jurisdiction statute. See Rowe et al., supra, 40 Emory L.J. at 949 n. 27; H.R.Rep. No. 734, 101st Cong., 2d Sess. 27, reprinted in 1990 U.S.C.C.A.N. 6860, 6873 n. 13. . This circuit has twice broached the question, but never answered it." }, { "docid": "23207991", "title": "", "text": "remains good decisional law.” Id. at 215. Section 1367 has engendered an unusually profuse and spirited academic debate. As representative — but by no means complete — see Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 471 (1991); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943 (1991); see also Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991); Christopher M. Fairman, Abdication to Academia: The Case of the Supplemental Jurisdiction Statute, 28 U.S.C. § 1367, 19 Seton Hall Legis. J. 157 (1994); Mengler, Burbank & Rowe, Congress Accepts Supreme Court’s Invitation, supra . For a listing of other scholarly articles, see Packard, 994 F.2d at 1045 n. 9. Moore's Federal Practice takes the position that on its face the statute appears to overrule Zahn, but that was not the intent of the statute’s academic drafters or Congress. See 16 Moore et al., supra, V 106.44, at 106-62 to 106-63. Federal Practice and Procedure takes á broader view, noting as compelling evidence that overruling Zahn would be inconsistent with the often-mentioned purpose of codifying the pre-Finley conception of supplemental jurisdiction. See 13 Wright, Miller & Cooper, supra, § 3523.1, at 112 (Supp.1998). . Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928 (7th Cir.1996), points out the anomaly in Section 1367(b), which lists Rule 20 among the Rules which plaintiffs may not use to bring claims \"against” persons under supplemental jurisdiction, even though the text does not prohibit Rule 20 joinder of non-diverse plaintiffs. See id. at 932. Subsection (b) denies jurisdiction over persons proposed to be joined as plaintiffs under Rule 19 or intervening under Rule 24 \"when exercising supplemental diversity jurisdiction would be inconsistent with the jurisdictional requirements of section 1332.” The omission of Rule 20 at that point is an unintentional drafting gap, but the legislative history provides more than" }, { "docid": "22231171", "title": "", "text": "(C.D.Ill.1994) (same); Duet v. Lawes, No. 94-0739, 1994 WL 151095, at *2, 1994 U.S.Dist. LEXIS 4755, at *4-5 (E.D.La. Apr. 7, 1994) (same); Riverside Transp., Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 456 (M.D.La.1994) (same); Fink v. Heath, No. 91-2982, 1991 WL 127664, at *3, 1991 U.S.Dist. LEXIS 9182, at *7-8 (N.D.Ill. July 8, 1991) (same); and Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1302 (N.D.Ill.1991) (same) with Lindsay v. Kvortek, 865 F.Supp. 264, 276 (W.D.Pa.1994) (determining that § 1367 supersedes Zahn; case did not involve class action); Patterson Enters., Inc. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154 (D.Kan.1993) (same); and Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1258 & n. 6 (M.D.La.1992) (same). . The impressive array of Professors Burbank, Mengler, and Rowe has observed that ‘‘[i]t would have been better had the statute dealt explicitly with this problem, and the legislative history was an attempt to correct the oversight.” Rowe et al., supra, 40 Emory L.J. at 960 n. 90. They have noted that the supplemental jurisdiction statute is \"not a perfect effort.” Thomas D. Rowe, Jr., et al., A Coda on Supplemental Jurisdiction, 40 Emory L.J. 993, 993 (1991). Some disagree and with inexplicably sharp language, given the reality that most mistakes become “clear” once they are identified. See, e.g., 1 Moore et al., supra, § 0.97[5], at 928 (blaming \"Congressional sloth in drafting the supplemental jurisdiction statute” for confusion over whether Zahn survives § 1367); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 471 (1992) (noting that Congress passed § 1367 too quickly to notice some of its problems); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important But Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31, 56-58 (1992) (chastising Congress and its legislative advisors for enacting an ambiguous statute); Thomas C. Arthur & Richard D. Freer, Close Enough For Government Work: What Happens When Congress Doesn’t Do Its Job, 40 Emory L.J. 1007, 1007 (1991) (calling § 1367(b) a \"nightmare of draftsmanship”)." }, { "docid": "19838561", "title": "", "text": "Supreme Court’s holding in Zahn has not been overruled by § 1367); Leroy Cattle Co., Inc. v. Fina Oil & Chemical Co., No. 93-1286-MLB, 1994 WL 151105, 1994 U.S.Dist. LEXIS 4802 (D.Kan. March 2, 1994) (“[E]aeh and every court dealing directly with the application of § 1367 in the class action context has ruled, based upon the legislative history, that § 1367 does not abrogate Zahn.... This court perceives no reason why it should depart from these well reasoned decisions.”); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180 (D.Mass.1993); Mayo v. Key Financial Services, Inc., 812 F.Supp. 277 (D.Mass.1993) (legislative history of 28 U.S.C. § 1367 indicates that the statute was not intended to affect the jurisdictional requirements for diversity class actions set forth in Zahn). In contrast to the apparent unanimity of courts addressing this issue in the class action context, in non-class actions the courts are divided as to whether § 1367 overrules § 1332’s rules of aggregation. Compare North American Mechanical Services Corp. v. Hubert, 859 F.Supp. 1186 (C.D.Ill.1994) (Congress did not intend § 1367 to overrule § 1332’s rules of aggregation); Duet v. Lawes, No. 94-0739, 1994 WL 151095, 1994 U.S.Dist. LEXIS 4755 (April 8,1994) (rejecting analysis in Garza (cited below)); Chouest v. American Airlines, Inc., 839 F.Supp. 412, 415 (E.D.La.1993); Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1301 (N.D.Ill.1991); C.D.S. Diversified v. Franchise Finance Corp., 757 F.Supp. 202 (E.D.N.Y.1991) (whether or not § 1367 applied, no jurisdiction to consider pendent party claim) with Lindsay v. Kvortek, 865 F.Supp. 264 (W.D.Penn.1994); Patterson Enterprises v. Bridgestone/Firestone, 812 F.Supp. 1152 (D.Kan.1993) (plain language of § 1367 has the effect of overruling Zahn in a non-class action case where no claim or party is added to the action); Garza v. National American Ins. Co., 807 F.Supp. 1256 (M.D.La.1992) (“[Tjhis court finds that the Congress said what it meant and the Congress meant what it said — the language of § 1367 unavoidably overrules these pre- § 1367 cases in those instances where the requirements of § 1367(a) are fulfilled and the exceptions of § 1367(b)" }, { "docid": "22231168", "title": "", "text": "in exceptional circumstances, there are other compelling reasons for declining jurisdiction. . See, e.g., 1 James W. Moore et al., Moore’s Federal Practice, ¶ 0.97[5], at 928 (2d ed. 1994); 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 6.11, at 6-48 (3d ed. 1992); Joan Steinman, Section 1367 — Another Party Heard From, 41 Emory L.J. 85, 103 (1992); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991). . See Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991). Professors Rowe, Burbank, and Mengler all had a hand in crafting the supplemental jurisdiction statute. See Rowe et al., supra, 40 Emory L.J. at 949 n. 27; H.R.Rep. No. 734, 101st Cong., 2d Sess. 27, reprinted in 1990 U.S.C.C.A.N. 6860, 6873 n. 13. . This circuit has twice broached the question, but never answered it. In More v. Intelcom Support Servs., Inc., we noted that § 1367 might affect the Zahn rule, but declined to decide that because the action at issue had been filed before § 1367 took effect. See 960 F.2d 466, 473 (5th Cir.1992). Later, in Watson v. Shell Oil Co., we reasoned that the Zahn rule would demand dis missal of class members’ claims below the jurisdictional threshold. See 979 F.2d 1014, 1021 (5th Cir.1992). However, that case had been filed before § 1367 took effect, and the opinion makes no mention of that statute. See id. at 1021 & n. 27. In any event, Watson has been vacated. When this court ordered the case reheard en banc, see 990 F.2d 805 (5th Cir.1993), the panel opinion in Watson was vacated, see 5th Cir.R. 35 (Internal Operating Procedure), and the en banc rehearing never occurred because the parties settled and the appeal was dismissed. The Third Circuit is the only other circuit to have considered the question. In Packard v. Provident Nat’l Bank, the court noted" }, { "docid": "23207990", "title": "", "text": "Committee cautioned in the Working Papers: \"[t]hese materials were valued background materials which the Committee determined should be published for general consideration whether or not the Committee agreed with their substantive proposals.... In no event should the enclosed materi als be construed as having been adopted by the Committee.” It is unfortunate that some commentators and courts have erroneously concluded that the Working Papers represented the view of the Federal Courts Study Committee. See In re Prudential Ins. Co. of America Sales Practices Litigation, 962 F.Supp. 450, 504-05 (D.N.J.1997), aff'd on other gds., 148 F.3d 283 (3d Cir.1998); Leszczynski v. Allianz Ins., 176 F.R.D. 659, 665-66 (S.D.Fla.1997). . See Thomas M. Mengler, Stephen B. Burbank & Thomas D. Rowe, Jr., Congress Accepts Supreme Court's Invitation to Codify Supplemental Jurisdiction, 74 Judicature 213, 216 (1991). \"[T]he legislative history makes clear that section 1367 is not intended to affect their [class actions under Rule 23] jurisdictional requirements .... [citing Zahn], Thus, the Supreme Court’s holdings that ... all class members must satisfy the amount in controversy requirement, remains good decisional law.” Id. at 215. Section 1367 has engendered an unusually profuse and spirited academic debate. As representative — but by no means complete — see Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 471 (1991); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943 (1991); see also Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991); Christopher M. Fairman, Abdication to Academia: The Case of the Supplemental Jurisdiction Statute, 28 U.S.C. § 1367, 19 Seton Hall Legis. J. 157 (1994); Mengler, Burbank & Rowe, Congress Accepts Supreme Court’s Invitation, supra . For a listing of other scholarly articles, see Packard, 994 F.2d at 1045 n. 9. Moore's Federal Practice takes the position that on its face the statute appears to overrule Zahn, but that was not the" }, { "docid": "10966950", "title": "", "text": "that the legislative history was “an attempt to correct an oversight” in the Act that led some commentators to assert that the Act overruled Zahn ). .In Finley the Supreme Court prevented a plaintiff who had satisfied original subject matter jurisdiction under the Federal Tort Claims Act from adding a transactionally-related state claim against a different, non-diverse defendant. . See, e.g. Lindsay v. Kvortek, 865 F.Supp. 264 (W.D.Pa.1994) (determining based on a plain language reading of the statute that Section 1367 legislatively overrules Zahn; case did not involve a class action); Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1258 (M.D.La.1992) (same); Patterson Enter., Inc. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154 (D.Kan.1993) (same); Booty v. Shoney’s, Inc., 872 F.Supp. 1524 (E.D.La.1995) (holding that if the requirements of § 1367(a) are met and the case does not fit one of the exceptions enumerated in (b), the district court has jurisdiction; case was not a class action). . See also Riverside Transp., Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 455-56 (M.D.La.1994); Pierson v. Perrier, 848 F.Supp. 1186 (E.D.Pa.1994); North American Mechanical Servs. Corp. v. Hubert, 859 F.Supp. 1186, 1188-89 (C.D.Ill.1994); Neve Bros. v. Potash Corp. (In re Potash Antitrust Litig.), 866 F.Supp. 406, 414 (D.Minn.1994); Henkel v. ITT Bowest Corp., 872 F.Supp. 872, 877 (D.Kan.1994); Aspe Arquitectos, S.A. de C.V. v. Jamieson, 869 F.Supp. 593, 595 (N.D.Ill.1994); Dirosa v. Grass, 1994 WL 583276, at *2 (E.D.La.1994); Kaplan v. Mentor Corp., 1994 U.S.Dist. LEXIS 15779, at *3 (N.D.Ill.1994), supplemented, 1994 WL 592081, 1994 U.S.Dist. LEXIS 15410 (E.D.Ill.1994); Benninghoff v. Tolson, 1994 WL 519745, at *4 (E.D.Pa.1994); Mayo v. Key Fin. Serv., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Chouest v. American Airlines, Inc., 839 F.Supp. 412, 414-415 (E.D.La.1993); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180, 181 n. 1 (D.Mass.1993); Benfield v. Mocatta Metals Corp., 1993 WL 148978 (S.D.N.Y.1993); Averdick v. Republic Fin. Serv., Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Bradbury v. Robertson-Ceco Corp., 1992 WL 178648 1994 U.S.Dist. LEXIS 15100 (N.D.Ill.1992); Fink v. Heath, 1991 WL 127664, at *3 (N.D.Ill.1991); Cheramie v. Texaco, Inc., 1991 WL 236784 (E.D.La.1991)." }, { "docid": "14122267", "title": "", "text": "are diverse from all of the Plaintiffs because defendant Noranda, Inc. has its \"principal place of business” in California. (Mem.Supp.Remand, at 2 n. 4). Under the accepted definition of the term \"principal place of business,” the Plaintiffs’ assertion is misplaced. . It is clear that the court in Goldberg based its decision solely on the \"policy” implications of the Supreme Court’s decision in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), which will be discussed below. See Goldberg, 678 F.2d at 1367. As a result, if the Plaintiffs do not prevail on their Zahn-related arguments, Goldberg would provide weak authority for their assertion that attorneys' fees should not be attributed to the named plaintiffs. . Plaintiffs also argue that by utilizing the terms \"joinder” and \"intervention” in the final sentence of § 1367(a), \"Congress intended to restrict the exercise of supplemental jurisdiction to those claims where additional parties are either joined or intervene in the litigation pursuant to the applicable federal rules and not to claims prosecuted on behalf of absent class members.\" (Mem.Supp.Remand, at 14.) The Court disagrees. The inclusion of \"joinder” and \"intervention” in § 1367(a) merely indicates that whatever jurisdiction is established therein, it exists as to claims brought by the original parties to the litigation and to those entering the case through joinder or intervention of additional parties. . The Defendants buttress their assertion that Congress unequivocally failed to include Rule 23 as an exception in § 1367(b) by citing an article that appeared as part of the academic debate swirling around the creation of § 1367 and its effects on Zahn. See, Thomas D. Rowe, Jr., Stephen B. Burbank and Thomas M. Mengler, Compounding or Creating Confusion about Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943 (1991). In the article, the authors, all of whom assisted in drafting § 1367, state that \"the legislative history was an attempt to correct [Congress'] oversight\" in failing to include Rule 23 as an exception to supplemental jurisdiction in § 1367(b). Id. at 960 n. 90. The Defendants also" }, { "docid": "17072262", "title": "", "text": "question cases cannot be destroyed by the identity or claims of other parties in an action,” but that “a federal court’s jurisdiction in a diversity case wholly turns on the identity and claims of the parties.” Infra at 125-126. Simply to state this distinction in the abstract is insufficient. It is up to Congress to transmute the distinction into a dispositive difference in the text of legislation. That is precisely what Congress has not done. Much of the dissent is a pastiche of legislative history and policy prescription, with quotations from the Federal Courts Study Committee thrown in for good measure. Though we see no reason to examine § 1367(a)’s legislative history in view of the straightforward reading to which the statute lends itself, it is nevertheless worth noting that the circumstances surrounding the creation of the legislative history in fact support our interpretation. The drafters of § 1367 apparently realized that they failed to except class actions under Rule 23 from § 1367(a)’s grant of supplemental jurisdiction. In an attempt to rectify matters, they put together a post-hoc legislative history stating that § 1367(a) was not intended to overrule Zahn. See H.R.Rep. No. 101-734, at 29 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6875 n. 17. Three drafters noted the effort with admirable candor: [0]n its .face, section 1367 does not appear to forbid supplemental jurisdiction over claims of class members that do not satisfy section 1332’s jurisdictional amount requirement, which would overrule Zahn .... [There is] a disclaimer of intent to accomplish this result in the legislative history.... It would have been better had the statute dealt explicitly with this problem, and the legislative history was an attempt to correct the oversight. Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating- Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991). In reading the clear language of the statute in the same way that the esteemed drafters of § 1367(a) do, we reach the conclusion they concede to be inescapable. We have no idea whether, as the" } ]

[ { "docid": "20185671", "title": "", "text": "Internal Revenue, and is entitled to said funds due the contractor on said contract, or so much thereof as will reimburse the plaintiff for the payments it has made and will make, as aforesaid. 16. That there are not enough funds remaining unpaid on said construction contract to pay said claims for material and labor or to reimburse the plaintiff Surety Company for payments it has and will make thereon and also to pay the claim of the Collector of Internal Revenue. 17. Orvil R. Olmsted, Regional Director, Adolph H. Zwerner, Regional Counsel, Walter E. Stanton, Acting Regional Counsel and Albert F. Muench, Associate Regional Counsel, all of said National Housing Agency of the Federal Public Housing Authority, are made parties defendant to this suit. A further defendant is Carter H. Harrison, Collector of Internal Revenue. Conclusions of Law. 1. The plaintiff Surety Company, by reason of its payment of claims for labor and material under the obligation of its performance and payment bonds, has a first and prior equitable lien on any and all funds remaining unpaid to the contractor, arising out of the construction contract; and said surety is subrogated to the rights of the owner, National Housing Agency, and of labor and material claimants, to the balance of said contract price; that said equitable lien in favor of the Surety Company relatés back to the date of the surety-ship contract. 2. That the claim of the Internal Revenue Collector for taxes due from said N. E. Daugherty and the lien and levy of said Internal Revenue Collector are inferior and subordinate to the equitable lien of the plaintiff Surety Company to the fund constituting the balance of the contract price; that since there is insufficient money remaining of said contract price to pay said labor and material claimants, or to reimburse the plaintiff Surety Company for the payments it has and will make thereon, and also to pay the claim of the Internal Revenue Collector, the said Internal Revenue Collector has no right to demand and receive the amount of his tax claim and the officers and" } ]

[ { "docid": "6860932", "title": "", "text": "default in several respects, including the time provision in the contract. The government filed a notice of tax lien upon the owner on June 1, 1954, and several days thereafter the contractor left the job altogether and did no further work. On June 1, 1954, no amount of money was due and owing to the contractor, under the contract, whether as withheld portions, or as portions of the contract' price certified for payment by the architects. The surety now stepped in and performed its obligations to the owner under its bond. It paid off certain liens and arranged for the completion of' the job by another contractor, thereby incurring costs in excess of the withheld sum of $12,411.40. Upon completion of the job, the surety made demand upon the owner for the remainder of the contract price. In view of conflicting demands made by the United States, the owner filed this suit. The United Státes bases its claim upon tax assessments becoming effective as liens upon any property of Berlinger on the following dates and in the following amounts: ' 11/18/53, $6,952.32; 2/8/54, $1,820.40; 6/3/54', $657.95. These assessments were received in the office of the Collector on the dates and in the amounts indicated, and therefore became liens against “all property and rights to property * * * belonging to such person”, here Berlinger. 26 U.S. C. §§ 3670-3672. The United States urges its claim as being prior to any liens not perfected in the manner provided by 26 U.S.C. § 3672(a). Under recent Supreme Court decisions, there seems to be no doubt that a federal tax lien is superior to a surety’s general claim arising out of the equitable doctrine of subrogation. See, for examples of liens inferior to federal tax liens because not sufficiently perfected, United States v. Acri, 1955, 348 U.S. 211, 75 S.Ct. 239, 99 L.Ed. 264; United States v. Scovil, 1955, 348 U.S. 218, 75 S.Ct. 244, 99 L.Ed. 271; United States v. Liverpool & London & Globe Insurance Co., Ltd., 1955, 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268; United States v. Security" }, { "docid": "11189246", "title": "", "text": "and for certain withholdings (usually 10% on the first one-half of payments made, if progress is satisfactory) until the project or some divisible part thereof is completed and accepted for use. The contract here in question is of this type.’ It has been this court’s holdings that retained percentages are designed to protect the United , States should it be forced to complete a defaulted contract at more than the contract price; that should a surety step in and complete the contract under its performance bond, it becomes subrogated to the Government’s claim against the retained percentages; and that the surety who has been obliged to make good the default of the contractor or to respond therefor in damages, has a claim upon funds in the Government’s hands superior to that of any other assignee. Hardin County Savings Bank v. United States, supra. See also Prairie State National Bank v. United States, supra. The cases distinguish between the above-mentioned performance bonds and payment bonds designed to protect laborers and materialmen. “If the contractor fails or refuses to pay its laborers and materialmen, the Government is not liable therefor, and it is not obligated or authorized to use the retained amounts to pay them. Therefore, the surety, upon payment of them, acquires no equitable lien on the retained amount, since it was not retained to secure performance of the obligation the surety discharges.” Schmoll v. United States, 1946, 63 F.Supp. 753, 757, 105 Ct.Cl. 415, 455. See also, United States v. Munsey Trust Company, 1947, 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022. The Schmoll and Munsey cases deny the existence of an equitable lien by subrogation in favor of sureties who have paid laborers and materialmen under the obligation of their (sureties’) bonds, where the United States both holds the money and is a claimant adverse to the surety. Both Cases are bottomed upon the proposition that there can be no subrogation without a right and that the laborers and materialmen never possessed a right against the United States. Superficially, these cases seem to indicate that the Acts of" }, { "docid": "4378818", "title": "", "text": "profit to the lender or investor, it is not profit within the doctrine of authorities exemplified by United States Fidelity and Guaranty Co. v. Worthington & Co., 5 Cir., 6 F.2d 502, certiorari denied 269 U.S. 583, 46 S.Ct. 119, 70 L.Ed. 424; Lacy v. Maryland Casualty Co., 4 Cir., 32 F.2d 48. Nor is it within the purview of those cases which deny to the surety the right to retain funds which accrue to it by reason of a favorable compounding of the debts of its principal as illustrated in Laber v. Gall, 71 App.D.C. 345, 110 F.2d 697; Martin v. Ellerbe’s Adm’r, 70 Ala. 326; Coggeshall v. Ruggles, 62 Ill. 401. The principle applied in rendering the presently assailed judgment, is the right of the sureties to be made whole, and profit is not involved. There remains the appellant’s final contention that the claim for interest is unsecured in that it arose after the levy of the tax lien. We agree with the district judge that a surety who makes good under his contract of suretyship upon default of the principal contractor, acquires an equitable lien against the unpaid balance in the hands of the person in whose favor the bond runs, and that such equitable lien upon payment by the surety relates back to the date of the contract and is superior to a claim of the United States for unpaid taxes for periods subsequent to the date of the contract of suretyship, although prior to the date of payment by the surety. In re Zaepfel and Russell, D.C., 49 F.Supp. 709, affirmed Farmers State Bank v. Jones, 6 Cir., 135 F.2d 215; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412. The cases relied upon by the appellant are not contra. People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754, involved 31 U.S.C.A. § 191, which provides that when a person indebted to the United States is insolvent and the" }, { "docid": "12449215", "title": "", "text": "a prior and superior lien under the statutes, it is entitled to priority in payment over the sureties by reason of the so-called “priority” statute, Section 3466, R.S., 31 U.S.C.A. § 191. In addition, the Government claims the sureties are liable on their performance bond in the amount of $2,484.31, for the taxes owed by taxpayer from performance of the hospital contract. The Government has a lien on all property of the taxpayer by statute. 26 U.S. C.A. § 3670. The lien arose at the time the assessment lists were received by the Collector. 26 U.S.C.A. § 3671. The first assessment lists received by the Collector -were those received on December 14, 1950, ■' By paying the materialmen and subcontractors on the hospital contract, upon the taxpayer’s inability to pay, the sureties did what they were required to do under their performance bond. The assignment of January 5,1952, was executed and thereafter the sureties paid the materialmen and sub-contractors. But even without the assignment of January 5,1952, the sureties were required to satisfy the claims of these unpaid material-men and sub-contractors under the terms of the performance bond. Upon the sureties’ performance under their bond obligation, they acquired an equitable lien against any sum remaining in the hands of the one for whose protection the bond was given. This lien relates back to the date of the contract and is superior to any lien arising thereafter. Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412; Henningsen v. U. S. Fidelity & Guaranty Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547; Town of River Junction v. Maryland Casualty Co., 5 Cir., 110 F.2d 278, certiorari denied 310 U.S. 634, 60 S.Ct. 1077, 84 L.Ed. 1404; Standard Acc. Ins. Co. of Detroit, Mich. v. Federal Nat. Bank, 10 Cir., 112 F.2d 692, affirmed on rehearing, 10 Cir., 115 F.2d 34; Exchange State Bank v. Federal Surety Co., 8 Cir., 28 F.2d 485, 488; Claiborne Parish School Bd. v. Fidelity & Deposit Co. of Maryland, 5 Cir., 40 F.2d 577, 579; Maryland" }, { "docid": "18801017", "title": "", "text": "a portion of contract payments withheld by the federal government. Sundberg, the general contractor, obtained a performance bond from a surety, then borrowed funds from a bank to complete the project and assigned the contract proceeds to the bank as security for the loan. Sundberg defaulted on its agreement with the government, thereby requiring the surety to complete the contract. The surety claimed priority to the retained funds pursuant to the suretyship agreement. The bank claimed priority as an assignee with an equitable lien on the unpaid contract price. The Court held that the suretyship agreement allowed the surety to be subrogated to Sund-berg’s rights. Further, by completing the contract, the surety was also entitled to be subrogated to the United States’ rights, including rights in the retained percentage since the purpose of retainage is as much to indemnify the surety as to protect the government from a breach of contract. Although the bank advanced funds so that Sundberg could perform the contract, the Court concluded that the bank did so voluntarily, and not due to any prior contractual obligation (such as a suretyship agreement) to Sundberg. Thus the bank was not entitled to subrogation. The subsequent assignment by Sundberg could not alter the surety’s rights; it could only transfer the rights that Sundberg retained. Accordingly, the Court held that the rights of a performance bond surety who completes a government contract are superior to those of a general contractor’s assignee with respect to the portion of the contract proceeds retained by the government. Henningsen v. United States Fidelity & Guar. Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908), extended Prairie State to payment bonds. There, the general contractor performed the contract but failed to pay the laborers and materialmen, thereby forcing the surety to pay the amount of the bond. As in Prairie State, the general contractor assigned its right to receive the contract proceeds to a bank in exchange for a loan. The surety sought to recover the proceeds ahead of the bank. The Court held that the bank was not entitled to be subrogated" }, { "docid": "19108060", "title": "", "text": "trustee because its security interest was belatedly perfected. Instead of relying on such lien rights, KCIC argues that it has a right to the proceeds earned on the various Larbar projects according to the doctrine of equitable subrogation. This doctrine arises when a contractor defaults on its obligations and a surety completes the work called for by the contract and pays all of the related bills. The law is clear that a surety under these circumstances has a right to the payments due the contractor to the extent of full reimbursement. See Pearlman v. Reliance Ins. Co., 371 U.S. 132, 141, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962); Prairie State Bank v. United States, 164 U.S. 227, 240, 32 Ct.Cl. 614, 17 S.Ct. 142, 41 L.Ed. 412 (1896). The surety has this right whether its bond is for performance or payment. See Pearlman, 371 U.S. at 139. Moreover, this right relates back to the date of the surety’s issuance of the bonds for the contract. See Prairie State, 164 U.S. at 240; National Sur. Corp. v. United States, 118 F.3d 1542,1546 (Fed.Cir.1997). Under Kentucky law, a surety does not have to perfect its interest according to the Uniform Commercial Code in order to prevail on its claim of equitable subrogation. See National Sur. Corp. v. State Nat’l Bank of Frankfort, 454 S.W.2d 854, 356 (Ky.1970) (hereafter “Bank of Frankfort”). The surety’s right of equitable subrogation takes precedence over any subsequently acquired security interest in any payments due the principal, which in the present case means that KCIC’s equitable rights would be superior to the Bank’s rights under the 1990 Side Agreement. See Prairie State, 164 U.S. at 240; Henningsen v. United States Fidelity & Guar. Co., 208 U.S. 404, 410, 28 S.Ct. 389, 52 L.Ed. 547 (1908). A surety, however, can waive this right in favor of another creditor. See, e.g., Bank of Frankfort, 454 S.W.2d at 357 (holding that the surety waived its right of equitable subrogation in favor of the lending bank). None of the parties disputes the fact that KCIC fulfilled its obligations as a surety under" }, { "docid": "4378821", "title": "", "text": "the Michigan case has no present application. The motion to dismiss the appeal is denied, the motion to correct the docket and caption of the record by substituting Seldon R. Glenn, Collector, for United States of America, is granted, and the judgment below is affirmed. MARTIN, Circuit Judge (dissenting). I would reverse the judgment and remand this cause to the district court, with direction that the sum of $7,076.15 be paid from the funds in the registry of the court to the United States Collector of Internal Revenue in partial payment of the tax lien of the United States for $13,029.28. It may be conceded that, in ordinary circumstances, a surety who makes good under his contract of suretyship upon default of the principal contractor acquires an equitable lien against the unpaid balance in the hands of the obligee of the bond and that such equitable lien, upon payment by the surety, relates back to the date of the contract. But, to my thinking, it does not follow, from this that such equitable lien is superior to the perfected lien of the United States for unpaid taxes of the defaulting contractor, for periods subsequent to the date of the contract of suretyship but prior to the date of payment by the surety, to the extent that interest must be allowed the surety on the principal sum paid by it when such allowance would completely exclude the Government tax- lien, Which attached to the funds involved before the surety expended money in performance of its obligation under the bond. Nor do I think the authorities cited, but not discussed, in the opinion of the court support the conclusion reached. In re Zaepfel and Russell, D.C., 49 F.Supp. 709, affirmed Farmers State Bank v. Jones, 6 Cir., 135 F.2d 215; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.F.d. 412. None of these cases dealt either with interest or with tax liens. The controversies in them were between surety companies and banks, and were decided" }, { "docid": "3200160", "title": "", "text": "GIBSON, Circuit Judge. The sole issue presented for review is whether a surety’s equitable subrogation claim constitutes a “security interest” under the Minnesota Uniform Commercial Code, M.S.A. § 336.1-101 et seq., and is thus required to be filed in order to perfect as a lien against a trustee in bankruptcy. The Referee in bankruptcy held it was not. The District Court affirmed. We affirm. The facts are not in dispute. In 1967 and 1968 the J. Y. Gleason Co., Inc., (the bankrupt) entered into five construction contracts with the State of Minnesota or one of its local governmental entities and gave both performance and payment bonds for each contract, with Aetna Casualty & Surety Co. as the surety. Each contract provided for progress payments based on the percentage of the work completed, subject to withholding a retained percentage pending completion. Gleason was unable to complete these contracts and Aetna as surety was called on to and did perform. Gleason filed a petition for an arrangement proceeding on January 27, 1969, and was declared a bankrupt on April 22, 1969. This action between the trustee and Aetna, as surety, concerns the entitlement to the retained percentages earned by the bankrupt prior to default. The Referee and District Court held that under the doctrine of subrogation an equitable lien was created at the time the surety completed performance on the contracts, and the lien related back in time to the making of the suretyship contract, thus giving the surety superior rights to the retained percentages. Prior to the adoption of the Uniform Commercial Code the doctrine of equitable subrogation as respects a surety’s right to be subrogated for loss incurred under the surety’s contract was firmly established. Prairie State National Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896); Henningsen v. United States Fidelity & Guaranty Company, 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908). Before the advent of the Uniform Commercial Code many states made no provision for the filing of notice of equitable liens or of claims against future earnings such" }, { "docid": "3200162", "title": "", "text": "as might arise by way of operation of law through the equitable subrogation lien doctrine in surety cases. The Uniform Commercial Code provides that transactions involving a “security interest” shall be filed, and this broad requirement could be viewed as including equitable claims and surety-ship agreements. In this case Aetna paid the claims of laborers and materialmen, which were far in excess of the amounts retained during the performance period by the owner. It is conceded that the owner had the right to use the retained funds to complete the work and pay laborers and materialmen from the fund, that the laborers and materialmen had an equitable right to be paid out of these funds, and further that their claims were not required to be filed in order to be perfected. The referee denied the claims of Aetna that were based upon the express assignment contained in each suretyship contract, but allowed the claims based on equitable subrogation. The liens allowed by the referee were those resulting by operation of law for funds expended by the surety in paying off obligations that were a proper charge against the retained funds held by the owner. Thus where the surety’s claim could rest on the principle of equitable subrogation it was held not to be a “security. interest” under the Uniform Commercial Code and consequently need not be filed. The trustee directs a two-pronged attack, contending (1) that the surety’s claim against retained funds is a “contract right” under the Uniform Commercial Code, operating as an assignment of future earnings given to secure performance by the principal, and thus is a “security interest” required to be filed under the Code, and further that the surety’s right of equitable subrogation on retained funds arises from and relates back to the original contract of surety, citing Prairie State National Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896), and (2) that the 1950 amendment of § 60 of the Bankruptcy Act, 11 U.S.C. § 96, abolishes equitable liens where available means of perfecting legal liens exists. We" }, { "docid": "1816941", "title": "", "text": "States claims that it has a priority lien over the plaintiff’s lien because of its tax lien notice filed in May of 1951. The defendant Atlantic Corporation supports the plaintiff’s contention since, if the plaintiff’s lien has priority over the United States’ lien, its own lien, too, will have priority over the United States’ lien. It is the contention of the United States that the plaintiff’s lien was at best an inchoate right which hadn’t been perfected; that if it did attach to anything, it attached to the funds which remained in the hands of the State of Vermont after the final “sectioning” or accounting by its Highway Department; that by the theory of subrogation, the plaintiff gained only such rights as defendant Duteau had. These arguments seem clearly untenable. The contract of suretyship which contained the subrogation agreement was signed by Duteau on June 7, 1949. On the 28th of June, 1949, notice of this subrogation assignment was filed with the Highway Department of the State of Vermont. Starting in June of 1950, the plaintiff advanced moneys under its contract of suretyship. It continued to make such advances until the construction job was completed and approved by the State of Vermont in December of 1950. Some time after this approval, but before May 14, 1951, the State of Vermont computed and ascertained the balance due and payable under the contract. And finally, on May 14, 1951, the United States filed notice of its tax lien. It seems basic to the law of suretyship that a surety who is called upon and makes good under its contract of suretyship upon default of its principal, or to prevent its principal being defaulted, acquires an equitable lien against any sum remaining in the hands of the one for whose protection the bond was given. Aetna Life Ins. Co. v. Town of Middleport, 124 U.S. 534, 8 S.Ct. 625, 31 L.Ed. 537, 541. This lien relates back to the date of the contract and is superior to any lien arising thereafter. Prairie State National Bank v. United States, 164 U.S. 227, 17 S.Ct." }, { "docid": "12334859", "title": "", "text": "Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896) and Henningsen v. United States Fid. & Guar. Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908), as follows: “In the Prairie Bank case a surety who had been compelled to complete a government contract upon the contractor’s default in performance claimed that he was entitled to be reimbursed for his expenditure out of a fund that arose from the Government’s retention of 10% of the estimated value of the work done under the terms of the contract between the original contractor and the Government. That contract contained almost the same provisions for retention of the fund as the contract presently before us. The Prairie Bank, contesting the surety’s claim, asserted that it had a superior equitable lien arising from moneys advanced by the bank to the contractor before the surety began to complete the work. The Court, in a well-reasoned opinion by Mr. Justice White, held that this fund materially tended to protect the surety, that its creation raised an equity in the surety’s favor, that the United States was entitled to protect itself out of the fund, and that the surety, by asserting the right of subrogation, could protect itself by resort to the same securities and same remedies which had been available to the United States for its protection against the contractor. The Court there went on to quote with obvious approval this statement from a state case: “ ‘The law upon this subject seems to be, the reserved per cent to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract as for him for whom it is to be performed. And there is great justness in the rule adopted. Equitably, therefore, r'the sureties in such eases are en-I titled to have the sum agreed upon held as a fund out of which they may be indemnified, and, if the ‘\"principal releases it without their consent it discharges" }, { "docid": "4378819", "title": "", "text": "contract of suretyship upon default of the principal contractor, acquires an equitable lien against the unpaid balance in the hands of the person in whose favor the bond runs, and that such equitable lien upon payment by the surety relates back to the date of the contract and is superior to a claim of the United States for unpaid taxes for periods subsequent to the date of the contract of suretyship, although prior to the date of payment by the surety. In re Zaepfel and Russell, D.C., 49 F.Supp. 709, affirmed Farmers State Bank v. Jones, 6 Cir., 135 F.2d 215; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412. The cases relied upon by the appellant are not contra. People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754, involved 31 U.S.C.A. § 191, which provides that when a person indebted to the United States is insolvent and the estate insufficient to pay all debts of the deceased, those due the United States shall be first satisfied. No disposition of an insolvent’s estate is here involved, and the statute has no present application. United States v. City of Greenville, 4 Cir., 118 F.2d 963. Michigan v. United States, 317 U.S. 338, 63 S.Ct. 302, 303, 87 L.Ed. 312, is further afield. It rejected the contention that a Michigan statute declaring state taxes to be a first lien upon real property on specified dates, could create a priority against an earlier lien for federal taxes under the Supremacy Clause of the United States Constitution, Art. 1, § 8, “Hence it is not debatable that a tax lien imposed by a law of Congress, as we have held the present lien is imposed, cannot, without the consent of Congress, be displaced by later liens imposed by authority of any state law or judicial decision.” Conceiving the liens of the sureties to have been created by the contract and effective as of its date, the doctrine in" }, { "docid": "22916210", "title": "", "text": "was to insure the contractor’s liability for claims of subcontractors, material-men and laborers. There is nothing in the legislative history of the Miller Act or the acts which it succeeded to indicate that the performance bond was to cover any obligations other than the requirement that the contractor complete his contract according to its specifications. Finally it is contended that the Government’s lien for these taxes is superior to the surety’s claim to these funds. This contention has been decided against the Government in a series of cases. As pointed out in the application for the payment bond, Kendrick assigned' to the surety company all its right, title and interest in and to any funds it was entitled to receive from the principal contractor, Leavell, to indemnify it against liability to which it might become subjected by virtue of Kendrick’s breach of its construction subcontract. At the time the surety company became liable and discharged its liability by paying all material, supply and labor claims, the fund in question was due Kendrick from Leavell. When a surety is called upon and makes good under its contract of suretyship upon default of its principal, it acquires an equitable lien against any sum remaining in the hands of the one for whose protection the bond was written due to its principal upon discharge of his obligation under its bond. This equitable lien relates back to the date of the contract and is superior to a Government lien for unpaid taxes subsequent to the date of the contract of suretyship although prior to the date of payment by the surety. The case of the United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S. Ct. 111, 95 L.Ed. 53, upon which the Government relies is distinguishable upon the facts. There it was held that the equitable doctrine of relation back will not operate to-defeat the specific and perfected tax lien of the United States. In that case the Federal Government had perfected its tax lien against real estate belonging to1 a defendant debtor in the state court in an action" }, { "docid": "5926823", "title": "", "text": "see that the laborers and supplymen were paid. It thereby became subrogated to the equity of the United States. Its action created in itself an equitable right which entitled it to demand and receive the balance due from the United States, and this equitable right, as the Supreme Court said in Prairie State Nat. Bank v. U. S., 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412, arose from and related back to the dale of the original contract of suretyship. Certainly there can be no real difference between the completion of the work by the surety, as was done in the Prairie Bank Case, and the furnishing of the money to the contractor after his default — as was the case here — to enable him to perform the contract. The same rule has been consistently adhered to by us in a number of cases: Lyttle v. National Surety Co., 43 App.D.C. 136; National Surety Co. v. Lane, 45 App.D.C. 176; Philadelphia Nat. Bank v. McKinlay, 63 App.D.C. 296, 72 F.2d 89; and recently in Moran v. Guardian Casualty Co., 64 App.D.C. 188, 76 F.2d 438, 439. In the latter case we said: “In Lyttle v. National Surety Co., 43 App.D.C. 136, we held, in a case involving the rights of a surety who had paid the claims of laborers and materialmen under a bond similar in all respects to the one here, that the surety was entitled to be subrogated not only to the rights of the contractor, but also to the rights of the United States under the contract. The former rights are here, and generally, bootless, but the latter include every right which the United States were capable of asserting against contractor had the surety not satisfied the obligations of the contract. We likewise held that this equitable right or lien existed in favor of the surety from the date of the bond. We said as much again in the recent case of Philadelphia Nat. Bank v. McKinlay, Trustee, 63 App.D.C. 296, 72 F.(2d) 89. In these circumstances, we have no doubt that appellee, as sürety," }, { "docid": "1816942", "title": "", "text": "plaintiff advanced moneys under its contract of suretyship. It continued to make such advances until the construction job was completed and approved by the State of Vermont in December of 1950. Some time after this approval, but before May 14, 1951, the State of Vermont computed and ascertained the balance due and payable under the contract. And finally, on May 14, 1951, the United States filed notice of its tax lien. It seems basic to the law of suretyship that a surety who is called upon and makes good under its contract of suretyship upon default of its principal, or to prevent its principal being defaulted, acquires an equitable lien against any sum remaining in the hands of the one for whose protection the bond was given. Aetna Life Ins. Co. v. Town of Middleport, 124 U.S. 534, 8 S.Ct. 625, 31 L.Ed. 537, 541. This lien relates back to the date of the contract and is superior to any lien arising thereafter. Prairie State National Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412, 419; New York Casualty Co. v. Zwerner, D.C., 58 F.Supp. 473, 476. The question here involved is not one where the lien of the United States precedes the processes by which a surety’s lien become choate, as the United States, in its brief, attempts to point out. Rather, every step of the normal routine of subrogation had been completed far in advance of the filing of the tax lien. In this case, the contract of suretyship had been signed. The surety had been called upon for performance. The surety had, in fact, performed. The surety had made its claim of subrogation by demanding the future payments and the withheld portions of the contract price. The State had acknowledged the rights of the plaintiff by making, payments to it as surety for Duteau. The State accepted the completion of the contract and had determined the balance payable under that contract. All of these stages had been gone through before the United States filed its tax lien. Every requirement of a perfect subrogation" }, { "docid": "1816943", "title": "", "text": "142, 41 L.Ed. 412, 419; New York Casualty Co. v. Zwerner, D.C., 58 F.Supp. 473, 476. The question here involved is not one where the lien of the United States precedes the processes by which a surety’s lien become choate, as the United States, in its brief, attempts to point out. Rather, every step of the normal routine of subrogation had been completed far in advance of the filing of the tax lien. In this case, the contract of suretyship had been signed. The surety had been called upon for performance. The surety had, in fact, performed. The surety had made its claim of subrogation by demanding the future payments and the withheld portions of the contract price. The State had acknowledged the rights of the plaintiff by making, payments to it as surety for Duteau. The State accepted the completion of the contract and had determined the balance payable under that contract. All of these stages had been gone through before the United States filed its tax lien. Every requirement of a perfect subrogation had been completed by the plaintiff long before the filing of the tax lien. Any ruling which now gives priority to the lien of the United States would necessarily operate to alter and impair rights acquired by the surety under the original contract. Prairie State National Bank v. United States, supra. What has been said above applies equally well to the claim of the United States, that the plaintiff acquired only such rights as Duteau had under this contract with the State of Vermont, and that until Duteau acquired a specific right to the final payment due under this contract, the rights to which the plaintiff was subrogated were merely inchoate — all this because the State of Vermont had not ascertained the balance due prior to the filing of the tax lien by the United States. As stated above, the filing of the tax lien was the very last step in these proceedings, and the lien of the plaintiff had become perfected well prior thereto. But this argument is further without merit in that" }, { "docid": "4378822", "title": "", "text": "superior to the perfected lien of the United States for unpaid taxes of the defaulting contractor, for periods subsequent to the date of the contract of suretyship but prior to the date of payment by the surety, to the extent that interest must be allowed the surety on the principal sum paid by it when such allowance would completely exclude the Government tax- lien, Which attached to the funds involved before the surety expended money in performance of its obligation under the bond. Nor do I think the authorities cited, but not discussed, in the opinion of the court support the conclusion reached. In re Zaepfel and Russell, D.C., 49 F.Supp. 709, affirmed Farmers State Bank v. Jones, 6 Cir., 135 F.2d 215; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.F.d. 412. None of these cases dealt either with interest or with tax liens. The controversies in them were between surety companies and banks, and were decided upon principles of subrogation, by which priority was accorded to the claims of the sureties over the claims of banks advancing money to the contractors. In this case, the obligee of the faithful performance bond who had in possession retained percentages was served by the Collector with a notice of levy and warrant for distraint on August 12, 1943, followed by service of final notice and demand on August 16, 1943. The Collector appropriately recorded his notice of tax lien on August 13, 1943. The obligee notified the sureties that, on August 20, 1943, the $13,-029.28 internal revenue taxes claimed out of the $59,647.72 retained percentages in its hands would be paid to the Collector, in compliance with his demand, unless the obligee was restrained from doing so. On August 19, 1943, payment to the Internal Revenue Collector was stayed, and ultimately enjoined, by the filing of this action by the sureties. After the sureties paid off the material and labor claims, there were sufficient retained funds ($59,647.72) in the hands of the obligee to" }, { "docid": "18801016", "title": "", "text": "553 of the Bankruptcy Code. All American and Gerson filed separate answers to the motion for summary judgment as well as memoranda in support of their positions. All American’s brief expressly adopted the arguments set forth in Gerson’s memorandum and presented additional arguments. Although Lazzaro did not file a separate memorandum in response to the SBA’s summary judgment motion, the Court will assume that it adopts the arguments articulated in All American’s and Ger-son’s memoranda. The Defendants essentially assert that their interests in the Proceeds are superior to those of the SBA pursuant to the Miller Act, third party beneficiary principles, and equitable liens. A. Priority of Claimants to Contract Proceeds In order to determine the relative priorities of the SBA and the Defendants to the Proceeds, the Court must attempt to navigate a thicket of public construction cases dating back almost a century. The exercise begins with Prairie State Nat’l Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896), which involved a dispute regarding the ownership of a portion of contract payments withheld by the federal government. Sundberg, the general contractor, obtained a performance bond from a surety, then borrowed funds from a bank to complete the project and assigned the contract proceeds to the bank as security for the loan. Sundberg defaulted on its agreement with the government, thereby requiring the surety to complete the contract. The surety claimed priority to the retained funds pursuant to the suretyship agreement. The bank claimed priority as an assignee with an equitable lien on the unpaid contract price. The Court held that the suretyship agreement allowed the surety to be subrogated to Sund-berg’s rights. Further, by completing the contract, the surety was also entitled to be subrogated to the United States’ rights, including rights in the retained percentage since the purpose of retainage is as much to indemnify the surety as to protect the government from a breach of contract. Although the bank advanced funds so that Sundberg could perform the contract, the Court concluded that the bank did so voluntarily, and not due" }, { "docid": "22916211", "title": "", "text": "a surety is called upon and makes good under its contract of suretyship upon default of its principal, it acquires an equitable lien against any sum remaining in the hands of the one for whose protection the bond was written due to its principal upon discharge of his obligation under its bond. This equitable lien relates back to the date of the contract and is superior to a Government lien for unpaid taxes subsequent to the date of the contract of suretyship although prior to the date of payment by the surety. The case of the United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S. Ct. 111, 95 L.Ed. 53, upon which the Government relies is distinguishable upon the facts. There it was held that the equitable doctrine of relation back will not operate to-defeat the specific and perfected tax lien of the United States. In that case the Federal Government had perfected its tax lien against real estate belonging to1 a defendant debtor in the state court in an action in which the plaintiff had caused an attachment lien to be filed against the debtor’s property. Under California law the attachment gave him only an inchoate lien which became perfected upon the entry of judgment. The effect of the decision by the Supreme 'Court is that the judgment subsequent to the perfection of the Government’s tax lien did not relate back to the date of the filing of the attachment so as to give the judgment creditor a lien superior to the tax lien of the Government. It is to be noted that both liens attached to property belonging to the defendant debtor, property that was his at all times. Such is not the case here. On the date of the execution of the subcontract the prime contractor had a specific right of ownership in any funds accruing to the subcontractor from the performance of his subcontract. The right to withhold these funds upon default was superior to any other claim against the fund as the property of the'subcontractor. When the subcontractor defaulted and its" }, { "docid": "3200161", "title": "", "text": "on April 22, 1969. This action between the trustee and Aetna, as surety, concerns the entitlement to the retained percentages earned by the bankrupt prior to default. The Referee and District Court held that under the doctrine of subrogation an equitable lien was created at the time the surety completed performance on the contracts, and the lien related back in time to the making of the suretyship contract, thus giving the surety superior rights to the retained percentages. Prior to the adoption of the Uniform Commercial Code the doctrine of equitable subrogation as respects a surety’s right to be subrogated for loss incurred under the surety’s contract was firmly established. Prairie State National Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896); Henningsen v. United States Fidelity & Guaranty Company, 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908). Before the advent of the Uniform Commercial Code many states made no provision for the filing of notice of equitable liens or of claims against future earnings such as might arise by way of operation of law through the equitable subrogation lien doctrine in surety cases. The Uniform Commercial Code provides that transactions involving a “security interest” shall be filed, and this broad requirement could be viewed as including equitable claims and surety-ship agreements. In this case Aetna paid the claims of laborers and materialmen, which were far in excess of the amounts retained during the performance period by the owner. It is conceded that the owner had the right to use the retained funds to complete the work and pay laborers and materialmen from the fund, that the laborers and materialmen had an equitable right to be paid out of these funds, and further that their claims were not required to be filed in order to be perfected. The referee denied the claims of Aetna that were based upon the express assignment contained in each suretyship contract, but allowed the claims based on equitable subrogation. The liens allowed by the referee were those resulting by operation of law for funds expended by" } ]

[ { "docid": "3853908", "title": "", "text": "60 M.J. at 84 (emphasis added). . Article 120(a), UCMJ, 10 U.S.C. § 920(a) (2000); see also Article 118, UCMJ, 10 U.S.C. § 918 (2000). . 60 M.J. at 84. . See Article 56, UCMJ; see also Article 18, UCMJ, 10 U.S.C. § 818 (2000) (establishing jurisdiction of general courts-martial to adjudge punishment “under such limitations as the President may prescribe”). . 60 MJ. at 85. . MCM (2002 ed.), pt. IV, K45.e.(l). . See Ronghi, 60 MJ. at 85. . Exec. Order 13,262 § 6.b, 67 Fed.Reg. 18,773, 18,779 (Apr. 11, 2000). . Ronghi, 60 M.J. at 85 (emphasis omitted). . See Coker v. Georgia, 433 U.S. 584, 599, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). . Id. at 592, 97 S.Ct. 2861. . Willenbring v. Neurauter, 48 MJ. 152, 180 (C.A.A.F.1998). . Id. at 178 (internal quotation marks and citations omitted). . R.C.M. 1003(b)(3) discussion (emphasis added). . R.C.M. 1003(a). . R.C.M. 1003(b)(3). . MCM (1949 ed.), 11117c, § B (emphasis added). . William Winthrop, Military Law and Precedents 419 (2d ed.1920)[hereinafter Winthrop], . MCM, U.S. Army (1921 ed.), H 317. . MCM, U.S. Army (1928 ed.), II 103g. . MCM, U.S. Army (1949 ed.), 1117c, § B; MCM, U.S. Air Force (1949 ed.), 1117c, § B. . See, e.g., War Department Technical Manual 27-255, Military Justice Procedure 1125b (1945) (asserting that \"[fjines should not be imposed on military personnel ..., except perhaps in the case of aggravated embezzlements or other frauds by a disbursing officer, for instance, where a large sum is necessary to make good the defalcation\"); Seminars on the 1949 Manual for Courts-Martial 96 (Dec.1948), microformed on OCLC No. 31272962 88-026, at F2/2 (Law Library Microform Consortium) (noting that although \"a fine may be adjudged against any enlisted person, in lieu of forfeitures, for any offense listed in the Table of Maximum Punishments, ... [tjhose provisions [regarding unjust enrichment] were inserted as authority for the imposition of a fine in lieu of forfeitures in the case, for example, of embezzlement by a finance officer or in the case of black marketeering”); Colonel Charles L. Decker," } ]

[ { "docid": "11885431", "title": "", "text": "of the specification.” I disagree. In Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), the Supreme Court announced that one offense is not a lesser included offense of another “unless the elements of the lesser offense are a subset of the elements of the charged offense.” Id. at 716. And “[s]ince offenses are statutorily defined, that comparison is appropriately conducted by reference to the statutory elements of the offenses in question.” Id. The plain language of Article 134, UCMJ, makes evident that the statute does not describe three separate offenses or theories of prosecution. Instead, it describes three distinct classes of offenses not otherwise described in the punitive articles of the UCMJ. Clause 1 makes criminal conduct that is prejudicial to good order and discipline in the armed forces, while clause 2 makes criminal conduct that is service discrediting. That the conduct was prejudicial to good order and discipline or was service discrediting is an element of the offense. Clause 3 offenses do not require either of those elements; rather, they require that the accused’s conduct be a non-capital offense that is either (1) a violation of the United States Code that is applicable to servicemembers regardless of where the wrongful conduct occurred, or (2) a violation of federal law applicable at the place of the offense or of state criminal statute applicable to an accused under the Federal Assimilative Crimes Act. Manual for Courts-Martial, United States (MCM) pt. IV, para. 60.c.(4) (2005 ed.). A particular act or omission may be a crime or offense not capital under clause 3 and still be prejudicial to good order and discipline or service discrediting. The three clauses may overlap in their coverage, but they are not coextensive, and one is not a lesser element of either of the others. As each of the three classes of offenses under Article 134, UCMJ, requires a different element, a clause 1 or clause 2 offense is not a lesser included offense of a clause 3 offense. II. The specifications at issue alleged that at Vilseck, Germany, and Fort Knox," }, { "docid": "5679680", "title": "", "text": "NAVY-MARINE CORPS COURT OF MILITARY REVIEW CORRECT, AS A MATTER OF LAW, IN ITS DETERMINATION THAT THE RETROACTIVE APPLICATION OF THE AMENDMENTS TO ARTICLE 2, UCMJ, VIOLATED THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO LAWS? Marsh cross-petitioned for grant of review; but, upon his motion and by leave of the Court, the cross-petition was later withdrawn. I In United States v. McDonagh, 14 M.J. 415 (C.M.A.1983), where the accused had been tried for various drug offenses, we upheld the retrospective application of the amendment to Article 2. However, we noted that our cases had drawn a distinction for some purposes between (a) purely military offenses, as to which disputed factual issues about the accused’s status as a servicemember must be decided by the trier of fact as part of the determination of guilt or innocence and as to which the Government bears the burden of proof beyond reasonable doubt, and (b) those offenses which are not peculiarly military, as to which the question of jurisdiction over the person is resolved by the military judge as an interlocutory matter with the Government only being required to establish jurisdiction by a preponderance of the evidence. Id. at 422. See also United States v. Laws, 11 M.J. 475 (C.M.A.1981); United States v. Ornelas, 2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952); cf. United States v. Jessie, 5 M.J. 573 (A.C.M.R.1978), pet. denied, 5 M.J. 300 (A.C.M.R.1978). See also para. 57b and g, Manual for Courts-Martial, United States, 1969 (Revised edition). We pointed out that “in the trial of purely military offenses, an issue of recruiter misconduct affecting the accused’s military status has been submitted to the court members as an element of the offense to be proved beyond reasonable doubt.” Then we explained: In line with this established distinction, the retroactive application of the amendment to Article 2 to a purely military offense involves eliminating an issue which, under the law in effect at the time when the offense allegedly was committed, had to be submitted to the trier of fact and proved by the Government beyond a reasonable doubt. This raises a serious" }, { "docid": "8682266", "title": "", "text": ". The Article 134, UCMJ, specification charged a violation of Ky.Rev.Stat. Ann. § 531.090 (Lexis-Nexis 2002), assimilated under Clause 3 of Article 134, UCMJ. . The Government argues that an Article 133, UCMJ, violation cannot be a purely military offense because while both Articles 133 and 134, UCMJ, require proof of unique military concepts, i.e., conduct unbecoming an officer and a gentleman and either service discrediting conduct or conduct prejudicial to good order and discipline, the underlying conduct proscribed in these articles could have a civilian analog. There are two problems with this argument. First, in this case, Appellant was expressly charged with conduct unbecoming an officer and a gentleman as the underlying offense and not just voyeurism. It was on that basis that his plea was taken. Second, whereas the military \"preemption doctrine” bars the government from charging an accused under Article 134(1), UCMJ, and Article 134(2), UCMJ, for conduct that is appropriately charged under an enumerated article, this same doctrine does not apply to Article 133, UCMJ. See United States v. Erickson, 61 M.J. 230, 233 (C.A.A.F. 2005) (“For an offense to be excluded from Article 134 based on preemption it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way.”). While we decline to decide today whether an Article 134, UCMJ, offense can serve as the underlying criminal offense in a housebreaking charge, we note that Articles 133 and 134, UCMJ, contain at least one significant difference. An accused can be charged with either an Article 133, UCMJ, offense or the enumerated punitive article based on the same underlying conduct, provided the conduct is, in fact, unbecoming an officer and a gentleman. United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F.2002). In short, Article 133, UCMJ, addresses the purely military nature of the conduct in question. ERDMANN, Judge, with whom RYAN, Judge, joins (concurring in part and dissenting in part): I agree with the majority that the offense of conduct unbecoming an officer and a gentleman under Article 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C." }, { "docid": "5679682", "title": "", "text": "ex post facto issue, because in a sense it involves changing an element of the crime to be punished. Id. at 422. As defined in Article 86, UCMJ, 10 U.S.C. § 886, unauthorized absence clearly is a “peculiarly military” offense, for by its express terms the statutory prohibition applies only to a “member of the armed forces.” Therefore, an accused’s status as a servicemember really is an element of the offense and he cannot be convicted unless the prosecution proves beyond a reasonable doubt that at the time of the absence he was a “member of the armed forces.” Under these circumstances, the retrospective application of the amendment to Article 2 is equivalent to eliminating an element of the crime after the conduct has taken place. While, as the Government argues, Marsh may have received adequate notice that he was amenable to prosecution, such notice does not suffice to overcome the constitutional prohibition against modifying elements of a crime retroactively. II In its decision on reconsideration, the Court of Military Review concerned itself only with whether appellee was a member of the armed forces for purposes of jurisdiction of the court-martial over him. Accordingly, it ordered a trial-level limited hearing on the question of jurisdiction — a question which, for this purpose, may be decided by a preponderance of the evidence. However, as we have noted, since appellee was prosecuted for unauthorized absence, he was entitled to have the issue of his status as a member of the armed forces at the time he absented himself determined by the trier of fact beyond a reasonable doubt. See United States v. Laws and United States v. Ornelas, both supra; para. 57b, Manual, supra. It is true that appellee ultimately pleaded guilty to the charged absence. But he did so only after the military judge had ruled that there was “no reason at all [in view of the amendment to Article 2] to entertain the motion” defense counsel had made to dismiss the charge for lack of in personam jurisdiction. In light of this reaction, appellee would have had no reason to" }, { "docid": "14478901", "title": "", "text": "for evaluating the truth of the prior statement and extinguished appellant’s right to confrontation. Hines, 23 M.J. at 138. We hold that the statements were properly admitted into evidence. Other allegations of error, to include those personally raised by appellant, are without merit. The findings of guilty and the sentence are affirmed. Chief Judge HOLDAWAY and Senior Judge KUCERA concur. . Fort Bliss, the installation to which appellant was assigned, has an agreement with local civil authorities permitting the Texas Department of Human Services to investigate child abuse cases. . See United States v. Murphy, 18 M.J. 220 (C.M.A.1984.) (Article 31, UCMJ, warning not required by foreign police officer conducting independent investigation); United States v. Penn, 39 C.M.R. 194 (1969) (independent investigation by secret service does not require Article 31, UCMJ, warning); United States v. Aau, 30 C.M.R. 332 (C.M.A.1961) (agreement that servicemembers cases would be given to the military for prosecution did not make civilian police agents of military for Article 31, UCMJ, purposes); United States v. Holder, 28 C.M.R. 14 (C.M.A.1959) (proper to apprehend and question servicemember without Article 31, UCMJ, warning where FBI agent performing his duties under direction of FBI and not Army); United States v. Hofbauer, 2 M.J. 922 (A.C.M.R.1976), affirmed, 5 M.J. 409 (C.M.A.1978) (no Article 31, UCMJ, warning requirement by FBI agent conducting independent investigation on post pursuant to memo of understanding). We are aware of this court’s holding in United States v. Hill, 13 M.J. 882 (A.C.M.R.1982). We do not believe that the holding in Hill is contrary to this case. To the extent it may be perceived to be at odds with this case, however, we will not follow Hill. . Mil.R.Evid. 305(d)(1)(B), provides, (d) Counsel rights and warnings. (1) General rule. When evidence of a testimonial or communicative nature within the meaning of the Fifth Amendment to the Constitution of the United States either is sought or is a reasonable consequence of an interrogation, an accused or a person suspected of an offense is entitled to consult with counsel as provided by paragraph (2) of this subdivision, to have such" }, { "docid": "7368893", "title": "", "text": "of statutory construction. For purposes of argument, we accept the contention that it would be ridiculous if a member of an armed force was engaged in espionage activities on foreign soil and could not be prosecuted. The short answer, of course, is that he could. If the espionage statute which authorizes the death penalty is not effective except within the continental United States and on the high seas, then the services are not confronted with the bar erected by subsection (3) of Article 134, for the only reason for its applicability is that Congress has prescribed that, in the area where civilian courts can operate, the offense is capital. The statute is noneffective outside that area and, absent the obstacle of the death sentence, the crime could be tried in military courts. For many years under the law (see Article of War 92) a similar rule obtained for the crimes of murder and rape and no undesirable consequences have resulted. Part of the difficulty encountered in this case arises from the necessity of having to determine the intent of Congress from the wording of several criminal statutes, together with their subsequent amendments. Where a particular act is amended, it may affect the practical application of other statutes. No difficulty would have been encountered in this case had the offense been committed prior to the year 1954. Before that time a peacetime violation of the Espionage Act did not permit the imposition of a death sentence. However, in that year Congress changed the maximum penalty and authorized capital punishment. We do not believe that by so doing it intended to deny to military courts their power to try members for criminal conduct which is inimical to the successful operation of the armed services. But this is not to say it did not intend to exclude from prosecution in military courts criminal misconduct which, if proven, could be punished by death. Congress most certainly changed the offense from the category of non-capital to capital crimes and did not express any intent to broaden the powers of courts-martial with respect to their jurisdiction" }, { "docid": "21715865", "title": "", "text": "grounds. Only one merits extensive discussion. II. Ealy claims that the five-year statute of limitations imposed by 18 U.S.C. § 3282 (1988) bars his prosecution for all of the offenses involved in this case because the offenses occurred in 1989 and the Government did not file a federal indictment until 2000. Ealy recognizes that § 3282 applies only to “any offense, not capital,” and, further, that § 3281 provides that “[a]n indictment for any offense punishable by death may be found at any time without limitation.” 18 U.S.C. §§ 3281-3282 (1988) (emphases added). He also recognizes that the Government charged him, and the jury convicted him, of violating 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 1512(a)(1)(C), both of which expressly allow for a death sentence. Moreover, before trial the Government filed notices of intent to seek the death penalty on the § 848(e)(1)(A) and § 1512(a)(1)(C) counts. Nevertheless, Ealy contends that the death penalty could not have been constitutionally imposed for the § 1512 offenses because of the Supreme Court’s opinion in Furman v. Georgia, 408 U.S. 238, 239-40, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), see Church, 151 F.Supp.2d at 717-18, or for the § 848 offenses -because the Government did not allege any of the § 848 statutory aggravating factors in the indictment, see United States v. Higgs, 353 F.3d 281, 298-99 (4th Cir.2003). As a result, he argues that none of these offenses were “punishable by death” under § 3281 but were instead “not capital” for limitations purposes. Even assuming Ealy is correct that the death penalty could not have been constitutionally imposed for these crimes, we agree with the district court that whether a crime is “punishable by death” under § 3281 or “capital” under § 3282 depends on whether the death penalty may be imposed for the crime under the enabling statute, not “on whether the death penalty is in fact available for defendants in a particular case.” Church, 151 F.Supp.2d at 717, 722. We have long recognized that a court’s inability to impose the death penalty for a particular crime repeals neither the" }, { "docid": "422501", "title": "", "text": "Judge ERDMANN delivered the opinion of the court. This case presents yet another issue arising from the prosecution of servicemembers for violating federal criminal statutes relating to child pornography in the wake of Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Specialist Christopher Martinelli’s convictions are based upon violations of the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2252A (2000), the same statute that we addressed in United States v. O’Connor, 58 M.J. 450 (C.A.A.F.2003), and in United States v. Mason, 60 M.J. 15 (C.A.A.F 2004). Unlike the circumstances in O’Connor and Mason, however, the conduct underlying Martinelli’s conviction occurred outside the United States — specifically in Darmstadt, Germany. We granted review of this case to examine the question of whether the CPPA applies to conduct engaged in outside the territorial boundaries of the United States when charged under clause 3 of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). We hold that the CPPA does not have extraterritorial application and therefore does not extend to Martinelli’s conduct in Germany. We further hold that Martinelli’s conduct under Specification 1 occurred in both Germany and the United States and therefore falls within the domestic application of the CPPA. We also hold that Martinelli’s plea to Specification 1 was not provident under O’Connor. Finally, although we have held that servicemembers can be prosecuted under clauses 1 and 2 of Article 134 for offenses involving “virtual” children, Martinelli’s guilty pleas to the CPPA-based specifications cannot be deemed provident to lesser included offenses under clauses 1 and 2 under the principles discussed in Mason, 60 M.J. at 18-20. PROCEDURAL BACKGROUND Martinelli entered guilty pleas and was convicted by general court-martial in April 2000 on four CPPA-based specifications under clause 3 of Article 134, UCMJ (sending, receiving, reproducing and possessing child pornography) and one specification of obstructing justice in violation of Article 134, UCMJ. He was sentenced by the military judge to a dishonorable discharge, confinement for three years, forfeiture of all pay and allowances and reduction to the lowest" }, { "docid": "7135745", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: If the Court of Military Review reverses the conviction of a servicemember serving a sentence of confinement and the case is certified to our Court, see Art. 67(b)(2), Uniform Code of Military Justice, 10 USC § 867(b)(2), under what circumstances, if any, is the servicemember entitled to be released from confinement? This is the question posed by Moore’s petition for extraordinary relief. Our holding is that the servicemember must be released from confinement, unless and until the Government shows reasons, such as risk of flight or obstruction of justice, that warrant keeping him in confinement. I Moore was charged with eight specifications of rape, four specifications of carnal knowledge, and one specification of indecent assault, in violation of Articles 120 and 134, UCMJ, 10 USC §§ 920 and 934, respectively. In each instance, the alleged victim was his stepdaughter. According to the sworn charges, these crimes occurred from May 1983 through September 1985. However, the charges were not received by an officer exercising summary court-martial jurisdiction — the event that tolls the running of the statute of limitations, see Art. 43(b) and (c), UCMJ, 10 USC § 843(b) and (c) — until May 20, 1988. When the offenses allegedly occurred, the statute of limitations for rape and carnal knowledge was 3 years (Art. 43(b)) and for indecent assault was 2 years (Art. 43(c)). Accordingly, prosecution for any rape or carnal knowledge that occurred before May 20, 1985, and any indecent assault that occurred before May 20, 1986, was barred by the statute of limitations. See RCM 907(b)(2)(B) and Discussion, Manual for Courts-Martial, United States, 1984; para. 68c, Manual for Courts-Martial, United States, 1969 (Revised edition). The Article 32, UCMJ, 10 USC § 832, investigating officer recommended that all but two of the specifications be dismissed because the statute of limitations had run. The staff judge advocate, nonetheless, recommended that all charges and specifications be referred to a general court-martial; and the convening authority did so. By a motion at trial, Moore successfully invoked the statute of limitations to dismiss all the charges and" }, { "docid": "8682255", "title": "", "text": "possess the “intent to commit the crime stated in the specification.” 38 M.J. 62, 68-69 (C.M.A.1993). In this case, the plain language of the specifications, as well as the military judge’s colloquy with Appellant, demonstrates that the underlying offense in Appellant’s case was the offense of engaging in conduct unbecoming an officer and a gentleman, an Article 133, UCMJ, violation. As a result, the essential inquiry is not whether surreptitious videotaping has a civilian counterpart, and thus is not a “purely military offense,” but whether conduct unbecoming an officer and a gentleman is a purely military offense. \\ II. Purely Military Offense In light of the military judge’s acceptance of Appellant’s guilty plea to housebreaking based on the underlying offense of conduct unbecoming an officer and a gentleman, the question becomes whether a violation of Article 133, UCMJ, constitutes a purely military offense for the purposes of Article 130, UCMJ. “Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.” Article 133, UCMJ. The elements of Article 133 are: (1) That the accused did or omitted to do certain acts; and (2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman. United States v. Boyett, 42 M.J. 150, 152 n. 2 (C.A.A.F.1995) (quoting MCM pt. IV, para. 59.b.). The focus of Article 133, UCMJ, is the effect of the accused’s conduct on his status as an officer, cadet, or midshipman: [T]he essence of an Article 133 offense is not whether an accused officer’s conduct otherwise amounts to an offense ... but simply whether the acts meet the standard of conduct unbecoming an officer.... [T]he appropriate standard for assessing criminality under Article 133 is whether the conduct or act charged is dishonorable and compromising ... this notwithstanding whether or not the act otherwise amounts to a crime. United States v. Giordano, 15 C.M.A. 163, 168, 35 C.M.R. 135, 140 (1964). A violation of Article 133, UCMJ, necessarily requires proof that the accused is a “commissioned officer, cadet, or midshipman” because" }, { "docid": "8682267", "title": "", "text": "M.J. 230, 233 (C.A.A.F. 2005) (“For an offense to be excluded from Article 134 based on preemption it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way.”). While we decline to decide today whether an Article 134, UCMJ, offense can serve as the underlying criminal offense in a housebreaking charge, we note that Articles 133 and 134, UCMJ, contain at least one significant difference. An accused can be charged with either an Article 133, UCMJ, offense or the enumerated punitive article based on the same underlying conduct, provided the conduct is, in fact, unbecoming an officer and a gentleman. United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F.2002). In short, Article 133, UCMJ, addresses the purely military nature of the conduct in question. ERDMANN, Judge, with whom RYAN, Judge, joins (concurring in part and dissenting in part): I agree with the majority that the offense of conduct unbecoming an officer and a gentleman under Article 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 933 (2000), is a purely military offense and cannot serve as the underlying criminal offense for a housebreaking charge under Article 130, UCMJ, 10 U.S.C. § 930 (2000). See Manual for Courts-Martial, United States pt. IV, para. 56.e(3) (2002 ed.) (MCM). I do not agree that unlawful entry under Article 134(1) or (2), UCMJ, 10 U.S.C. § 934(1), (2) (2000), may be affirmed as a lesser included offense under the circumstances of this case. To do so is to retreat from our recent decision in United States v. Medina, 66 M.J. 21 (C.A.A.F.2008). I read Medina differently than does the majority and believe that case represents a departure from this court’s pri- or practice of assuming that clauses 1 and/or 2 of Article 134, UCMJ, are inherently, necessarily, implicitly or constructively lesser included concepts of other offenses, including the enumerated offenses. The effect of the majority opinion is to revive those concepts as a basis for finding lesser included offenses. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), empowers a military appellate court “to" }, { "docid": "8487749", "title": "", "text": "120 S.Ct. 2348; Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215; United States v. Fosler, 70 M.J. 225, 229-30, 232 (C.A.A.F.2011); cf. United States v. Lawrence, 735 F.3d 385, 420 (6th Cir.2013) (“After Ring, several courts have held that an indictment charging a death-eligible offense under the [Federal Death Penalty Act] must charge the statutory aggravating factors.”). Third, citing the provisions in the United States Attorneys’ Manual that set forth policies and procedures in, federal civilian capital eases, Appellant claims the military’s failure to create similar procedures violates his Article 36, UCMJ, rights and his Fifth Amendment equal protection rights. Appellant’s reliance on Article 36, UCMJ, is unpersuasive because this article does not require the President to prescribe' similar policies for military death penalty eases. See Article 36(a), UCMJ, 10 U.S.C. 836(a) (2012) (noting that pretrial procedures “may be prescribed by the President, which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts”). Appellant’s equal protection argument is equally unpersuasive. Appellant as- serfs that servicemembers who are death-eligible are treated differently than their similarly situated civilian counterparts because convening authorities do not have to comply with death penalty protocols. “An ‘equal protection violation’ is discrimination that is so unjustifiable as to violate due process.” United States v. Rodriguez-Amy, 19 M.J. 177, 178 (C.M.A.1985). However, “equal protection is not denied when there is a reasonable basis for a difference in treats ment.” United States v. McGraner, 13 M.J. 408, 418 (C.M.A.1982). We do not find any unjustifiable discrimination in the instant ease because Appellant, as an accused ser-vicemember, was not similarly situated to a civilian defendant. See Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (“[T]he military is, by necessity, a specialized society separate from civilian society.”). We also note that “[t]he policy of the Justice Department is but an internal policy, without the force of law and subject to change or suspension at any time.” Therefore, it does not serve" }, { "docid": "5679681", "title": "", "text": "an interlocutory matter with the Government only being required to establish jurisdiction by a preponderance of the evidence. Id. at 422. See also United States v. Laws, 11 M.J. 475 (C.M.A.1981); United States v. Ornelas, 2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952); cf. United States v. Jessie, 5 M.J. 573 (A.C.M.R.1978), pet. denied, 5 M.J. 300 (A.C.M.R.1978). See also para. 57b and g, Manual for Courts-Martial, United States, 1969 (Revised edition). We pointed out that “in the trial of purely military offenses, an issue of recruiter misconduct affecting the accused’s military status has been submitted to the court members as an element of the offense to be proved beyond reasonable doubt.” Then we explained: In line with this established distinction, the retroactive application of the amendment to Article 2 to a purely military offense involves eliminating an issue which, under the law in effect at the time when the offense allegedly was committed, had to be submitted to the trier of fact and proved by the Government beyond a reasonable doubt. This raises a serious ex post facto issue, because in a sense it involves changing an element of the crime to be punished. Id. at 422. As defined in Article 86, UCMJ, 10 U.S.C. § 886, unauthorized absence clearly is a “peculiarly military” offense, for by its express terms the statutory prohibition applies only to a “member of the armed forces.” Therefore, an accused’s status as a servicemember really is an element of the offense and he cannot be convicted unless the prosecution proves beyond a reasonable doubt that at the time of the absence he was a “member of the armed forces.” Under these circumstances, the retrospective application of the amendment to Article 2 is equivalent to eliminating an element of the crime after the conduct has taken place. While, as the Government argues, Marsh may have received adequate notice that he was amenable to prosecution, such notice does not suffice to overcome the constitutional prohibition against modifying elements of a crime retroactively. II In its decision on reconsideration, the Court of Military Review concerned itself only with" }, { "docid": "422508", "title": "", "text": "the armed forces” (clause 1), if it is “of a nature to bring discredit upon the armed forces” (clause 2), or if it is a crime or offense not capital (clause 3). O’Connor, 58 M.J. at 452. As was the case in both O’Connor and Mason, Martinelli’s conduct was specifically charged as a “clause 3” offense, with the CPPA serving as the “crime or offense not capital.” The initial question that we specified for review is ostensibly straightforward — does the CPPA apply to Martinelli’s conduct in Germany? The President, in the Manual for Courts-Martial, has stated that: Manual for Courts-Martial, United States (2002 ed.) (MCM), pt. IV, H 60.c.(4)(c)(i) (emphasis added). As a uniformed servicemember stationed in Germany, Martinelli was unquestionably subject to the jurisdiction of the UCMJ. See Articles 2(a)(1) and 5, UCMJ, 10 U.S.C. §§ 802(a)(1), 805 (2000). There is also no question that the CPPA, if charged under clause 3 of Article 134, would be applicable to Martinelli’s conduct had he engaged in these acts in an Internet cafe in Killeen, Texas and then carried the disks back to a barracks room on Fort Hood. Similarly, his conduct might well be punishable under clauses 1 and 2 of Article 134 regardless of where it occurred. A person subject to the [UCMJ] may not be punished under clause 3 of Article 134 for an offense that occurred in a place where the law in question did not apply. For example, a person may not be punished under clause 3 of Article 13Jp when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States. Regardless where committed, such an act might be punishable under clauses 1 or 2 of Article 134. The question we address today is not the jurisdiction of the UCMJ itself, but rather whether the CPPA has extraterritorial application under clause 3 of Article 134. If we find that the CPPA, as a “crime or offense not capital,” is not applicable to Martinelli’s conduct in Germany," }, { "docid": "23462652", "title": "", "text": "M.J. 236, 239-40 (C.A.A.F.2002) (concluding that the accused could not be charged with violating Article 134, UCMJ, for leaning on a civilian boat in a marina). The dilemma, of course, is that because Article 134, UCMJ, is unique to military justice and discipline and was drafted in an intentionally broad manner to give the commander flexibility, it uses generalized statutory elements. The Article 134, UCMJ, elements do not and cannot line up in a literal sense with the statutory elements of the enumerated offenses, which were codified in specific criminal element language. Congress did not intend to do the same with clauses 1 and 2 of Article 134, UCMJ. The general nature of the article’s elements makes it more difficult for servicemembers to ascertain what is and is not criminal under Article 134, UCMJ. Thus, where Article 134, UCMJ, is concerned it is the commander as convening authority, and ultimately the President as commander in chief, who gives meaning to these elements and essentially defines their meaning in context. As a result, Article 79, UCMJ, 10 U.S.C. § 879 (2006), does not address the question as to how the enumerated articles and Article 134, UCMJ, as a lesser included offense relate. The Congress has left it to the President to define clauses 1 and 2 of Article 134, UCMJ, and heretofore he has done so in a manner that necessarily includes certain conduct under Article 134, UCMJ, as lesser included offenses to enumerated offenses. Binding or not, the commander in chiefs view as to how conduct listed under Article 134, UCMJ, necessarily also implicates service discredit and good order and discipline should be persuasive. It also can provide fair notice as to how clauses 1 and 2 of Article 134 relate to the enumerated articles with regard to lesser included offenses. Thus, while it is a constitutional truism that only Congress can define crimes, and the elements of crimes, it does not necessarily follow that the President is precluded from giving those elements meaning in the military context where the President acts as commander in chief and Congress has not" }, { "docid": "17039961", "title": "", "text": "TAPES, OR OTHER MATTER WHICH CONTAINED ILLEGAL IMAGES. II WHETHER THE APPLICATION OF ARTICLES 57(a) AND 58b, UCMJ, VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION WITH RESPECT TO APPELLANT. The first issue concerns the child pornography charge and poses two questions. One is whether appellant’s guilty plea was improvident because of the great confusion on the part of all involved — including the Article 32 investigating officer, counsel, the military judge, and later, appellate counsel— about the statute under which appellant was being tried. The second question is whether any statute in effect at the time of Falk’s alleged misconduct prohibited what he did. To understand and answer the two questions requires the consideration of several statutes and then an examination of this case’s confusing procedural history. I A. Statutes Involved Article 134 of the UCMJ prohibits conduct of a servicemember which is: (a) to the prejudice of good order and discipline in the armed forces; (b) service discrediting; or (c) a crime under generally applicable federal penal statutes. Some conduct that falls into one or both of the first two categories may also be a crime under Title 18 of the United States Code; and in that event, the conduct is punishable whether committed by a ser-vicemember or a civilian. Therefore, an accuser in preferring charges, or trial counsel in prosecuting, may opt to rely on the generally applicable federal penal statute rather than to proceed under the first two clauses of Article 134. In that way, there is no need to prove that the accused’s conduct was contrary to good order and discipline or was service discrediting. Title 18 USC contains § 2252, which Congress enacted in 1978, and which has been subsequently amended from time to time. At the time of Falk’s trial and alleged offense, § 2252 provided, inter alia, that it was a crime to “knowingly possess 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction” of child pornography. Effective on September 30,1996, Congress added to Title 18 an additional section, § 2252A," }, { "docid": "422507", "title": "", "text": "pornography on land and in a building used by and under the control of the United States Government in violation of § 2252A(a)(5)(A) (specifically, possessing approximately fifty diskettes containing child pornography in bufldings at the Cambrai Fritsch Kaserne). DISCUSSION A. Standard of Review This case involves a guilty plea. For this court to reject a guilty plea on appellate review, the record of trial must show a substantial basis in law and fact for questioning the plea. United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.2002)(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). Whether Congress intended the CPPA to have extraterritorial application is a question of statutory interpretation. Interpretation of a statute and its legislative history are questions of law that we review de novo. United States v. Falk, 50 M.J. 385, 390 (C.A.A.F. 1999). B. The Nature of the Charge under Article 13h Martinelli’s conduct was charged as a violation of Article 134, UCMJ — the “General Article.” Conduct is punishable under Article 134 if it “prejudices good order and discipline in the armed forces” (clause 1), if it is “of a nature to bring discredit upon the armed forces” (clause 2), or if it is a crime or offense not capital (clause 3). O’Connor, 58 M.J. at 452. As was the case in both O’Connor and Mason, Martinelli’s conduct was specifically charged as a “clause 3” offense, with the CPPA serving as the “crime or offense not capital.” The initial question that we specified for review is ostensibly straightforward — does the CPPA apply to Martinelli’s conduct in Germany? The President, in the Manual for Courts-Martial, has stated that: Manual for Courts-Martial, United States (2002 ed.) (MCM), pt. IV, H 60.c.(4)(c)(i) (emphasis added). As a uniformed servicemember stationed in Germany, Martinelli was unquestionably subject to the jurisdiction of the UCMJ. See Articles 2(a)(1) and 5, UCMJ, 10 U.S.C. §§ 802(a)(1), 805 (2000). There is also no question that the CPPA, if charged under clause 3 of Article 134, would be applicable to Martinelli’s conduct had he engaged in these acts in an Internet cafe in Killeen," }, { "docid": "8682257", "title": "", "text": "the conduct must have disgraced or dishonored the accused in his or her official capacity. See Article 133, UCMJ; see also MCM pt. IV, para. 59.c(2); United States v. Taylor, 23 M.J. 314, 318 (C.M.A.1987) (“The test [for Article 133, UCMJ] is whether the conduct has fallen below the standards established for officers.”); United States v. Marsh, 15 M.J. 252, 253-54 (C.M.A.1983) (finding that unauthorized absence is a “peculiarly military” offense, or an offense “to which disputed factual issues about the accused’s status as a servicemember must be decided by the trier of fact as part of the determination of guilt or innocence and as to which the Government bears the burden of proof beyond reasonable doubt” and which “by its express terms, the statutory prohibition applies only to a member of the armed forces”) (quotation marks omitted). It ineluctably follows that Article 133, UCMJ, is a purely military offense when it constitutes the underlying criminal offense for housebreaking. Only a commissioned military officer, cadet, or midshipman can commit the offense and it is only a court-martial that has jurisdiction to prosecute such an offense. Giordano, 15 C.M.A. at 168, 35 C.M.R. at 140 (“Conduct unbecoming an officer has long been recognized as a military offense_”). Article 133, UCMJ, therefore cannot serve as the underlying criminal offense in a housebreaking charge. III. Lesser Included Offense of Unlawful Entry The question now presented is whether we may nonetheless affirm the lesser included offense of unlawful entry in this case. “Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.” Article 59(b), UCMJ, 10 U.S.C. 859(b) (2000); United States v. Medina, 66 M.J. 21, 24 (C.A.A.F.2008). “An accused may be found guilty of an offense necessarily included in the offense charged....” Article 79, UCMJ, 10 U.S.C. 879 (2000). Where an offense is a lesser included offense of the charged offense, an accused is by definition on notice because it is a subset of the greater offense alleged. However, where a distinct offense" }, { "docid": "8385837", "title": "", "text": "violation is determined by applying the elements test. United States v. Morrison, 41 M.J. 482, 483 (C.A.A.F.1995) (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Insofar as this Court held in United States v. Quiroz that there exists a doctrine of unreasonable multiplication of charges separate from multiplicity, we were wrong. See 55 M.J. 334, 345 (C.A.A.F.2001) (Sullivan, J., dissenting) (“Judicial action thus transforms a hortatory principle of military justice (that a single instance of misconduct should not give rise to an unreasonable multiplication of charges by the prosecution) into a legally enforceable right of an accused_”). It is a judicially created doctrine that has done more harm than good and is without a basis in statute. Military courts are Article I courts of limited jurisdiction, with powers defined entirely by statute. United States v. Wuterich, 67 M.J. 63, 70 (C.A.A.F.2008). Congress alone defines the elements of offenses in the military, see United States v. Jones, 68 M.J. 465, 478 (C.A.A.F.2010), and it delegated its power to determine most maximum and minimum sentences to the President, not the military judge, see Article 56, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 856 (2006). Multiplicity for sentencing is a purely judge-made doctrine that has done more harm than good. See Quiroz, 55 M.J. at 349-50 (Sullivan, J., dissenting). If a conviction can be had for both offenses, that is, the offenses are not multipli-cious, then the maximum sentence prescribed by the President is the total of the maximum sentences for those offenses. To the extent a remedy is needed for prosecutorial overreaching or excessive sentences falling within the prescribed maximum, Congress provided it in the statutory authority of the Courts of Criminal Appeals to “affirm only such ... sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006). We have held that the CCAs have the power to determine whether a sentence is appropriate as a" }, { "docid": "8682256", "title": "", "text": "Article 133, UCMJ. The elements of Article 133 are: (1) That the accused did or omitted to do certain acts; and (2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman. United States v. Boyett, 42 M.J. 150, 152 n. 2 (C.A.A.F.1995) (quoting MCM pt. IV, para. 59.b.). The focus of Article 133, UCMJ, is the effect of the accused’s conduct on his status as an officer, cadet, or midshipman: [T]he essence of an Article 133 offense is not whether an accused officer’s conduct otherwise amounts to an offense ... but simply whether the acts meet the standard of conduct unbecoming an officer.... [T]he appropriate standard for assessing criminality under Article 133 is whether the conduct or act charged is dishonorable and compromising ... this notwithstanding whether or not the act otherwise amounts to a crime. United States v. Giordano, 15 C.M.A. 163, 168, 35 C.M.R. 135, 140 (1964). A violation of Article 133, UCMJ, necessarily requires proof that the accused is a “commissioned officer, cadet, or midshipman” because the conduct must have disgraced or dishonored the accused in his or her official capacity. See Article 133, UCMJ; see also MCM pt. IV, para. 59.c(2); United States v. Taylor, 23 M.J. 314, 318 (C.M.A.1987) (“The test [for Article 133, UCMJ] is whether the conduct has fallen below the standards established for officers.”); United States v. Marsh, 15 M.J. 252, 253-54 (C.M.A.1983) (finding that unauthorized absence is a “peculiarly military” offense, or an offense “to which disputed factual issues about the accused’s status as a servicemember must be decided by the trier of fact as part of the determination of guilt or innocence and as to which the Government bears the burden of proof beyond reasonable doubt” and which “by its express terms, the statutory prohibition applies only to a member of the armed forces”) (quotation marks omitted). It ineluctably follows that Article 133, UCMJ, is a purely military offense when it constitutes the underlying criminal offense for housebreaking. Only a commissioned military officer, cadet, or midshipman can commit the offense and it is only" } ]

[ { "docid": "22758268", "title": "", "text": "unfair practice. As stated in Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 986 (1973): Since a suit in court depends on an agency notice to sue letter and since the agency cannot take the case initially unless the timely filing requirements are met, the timely filing requirements with respect to EEOC appears to be a jurisdictional prerequisite to court action under Title VII. A plaintiff may bring a class action on behalf of those who have not filed charges with the EEOC. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719— 720 (7th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). This tolls the statute of limitations for all members of the class. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). But Wetzel and Ross cannot represent those who could not have filed a charge witlj the EEOC at the time they filed their charges. CWA v. New York Telephone Co., 8 F.E.P. 509, 513 (S.D.N.Y.1974); Culbert v. General Electric Co., 5 F.E.P. 969, 993 (E.D.Va.1973); Garneau v. Raytheon Co., 3 F.E.P. 1315 (D.Mass.1971). This conclusion does not mean, ¡'however, as Liberty Mutual contends, ¡¡¡that the numerosity requirement of 23(a)(1) has not been met. Wetzel’s and Ross’ charges alleged the maintenance of discriminatory hiring and promotion policies up to the time of the filing of their complaint. Such policies are continuing violations of Title VII and would allow a filing of a charge at any time by a present employee. Macklin v. Spector Freight Systems, Inc., supra, 478 F.2d at 987 — 988. The only employees barred from the class are those who left the employ of the Company more than 210 days before the filing of the charges with the EEOC by Wetzel and Ross. The class will be larger than the approximately seven hundred female technical employees presently employed by Liberty Mutual, meeting the numerosity requirement of 23(a)(1). Of course, in the determination of the relief to which members of the class will be entitled, the district court should" } ]

[ { "docid": "11739824", "title": "", "text": "Co., 392 F.Supp. 1176 (N.D.Ga., 1975). If this court were to adopt plaintiff’s reasoning, Title VII would enable any minority group member in Georgia, allegedly discriminated against within the past twenty years, to seek direct relief in terms of reinstatement irrespective of his or her present qualifications for the particular job. Similarly, minority group members, who had been previously discriminated against, would arguably be able to shop around for another job, and hopefully a better one, secure in the knowledge that they could compel their employer to reinstate them at any time within the twenty-year period. Title VII was not designed to be given this sort of pervasive effect. The 180-day requirement contained in 42 U.S.C. § 2000e-5(e), and the cases interpreting this requirement indicate that the primary goal of Title VII is to eliminate present discriminatory treatment, with a corollary purpose to eliminate present vestiges of past discriminatory treatment. In reaching the conclusions expressed in the March 12, 1975 order, this court was well aware that the question of whether the requirement for filing a timely EEOC complaint is a jurisdictional prerequisite to suit has not yet been definitively ruled upon by the Court of Appeals for the Fifth Circuit. Cisson v. Lockheed-Georgia Co., supra at note 3. See Guerra v. Manchester Terminal Corp., 498 F.2d 641, 647 n. 6 (5th Cir. 1974). On the other hand, in this district, as well as in other jurisdictions, the vast weight of authority supports the proposition that the 180-day filing requirement is jurisdictional. E. g., Pacific Maritime Assoc. v. Quinn, 491 F.2d 1294 (9th Cir. 1974); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972); Cisson v. Lockheed-Georgia Co., supra; Ross v. General Motors Corp., supra; Loo v. Gerage, 374 F.Supp. 1338 (D.Hawaii 1974); Georgia Power Co. v. EEOC, 295 F.Supp. 950 (N.D.Ga.1968), aff’d, 412 F.2d 462 (5th Cir. 1969). Thus the question becomes how to satisfy the 180-day requirement? In the prior order, this court ruled that plaintiff could satisfy this requirement by proving that “either" }, { "docid": "13542947", "title": "", "text": ". See, e. g., Cohen v. District of Columbia Nat’l Bank, 59 F.R.D. 84, 90 (D.D.C.1972); Lamb v. United Sec. Life Co., 59 F.R.D. 25, 35 n.5 (S.D.Iowa 1972). . Fed.R.Civ.P. 23. . 28 U.S.C. § 2072 (1970), providing in part explicitly that the Federal Rules of Civil Procedure “shall not abridge, enlarge or modify any substantive right . . . .” See also United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 771, 85 L.Ed. 1058, 1063 (1941) (discussing the precursor of § 2072, the Act of June 19, 1934, 48 Stat. 1064); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10, 61 S.Ct. 422, 424-425, 85 L.Ed. 479, 482-483 (1941) (same); Brennan v. Silvergate Dist. Lodge No. 50, 503 F.2d 800, 804 (9th Cir. 1974). . Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 246 (3d Cir.), cert, denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Mather v. Western Air Lines, 59 F.R.D. 535 (C.D.Cal. 1973); Marshall v. Electric Hose & Rubber Co., 68 F.R.D. 287, 294 (D.Del.1975); Jones v. Unit ed Gas Improvement Corp., 68 F.R.D. 1, 15-16 (E.D.Pa.1975). . Laffey v. Northwest Airlines, supra note 1, 366 F.Supp. at 790 (Concl. 6). . Macklin v. Spector Freight Sys., Inc., supra note 112, 156 U.S.App.D.C. at 77-78, 478 F.2d at 987-988; Wetzel v. Liberty Mut. Ins. Co., supra note 329, 508 F.2d at 246; Cox v. United States Gypsum Co., 409 F.2d 289, 290-291 (7th Cir. 1969). . Wetzel v. Liberty Mut. Ins. Co., supra note 329, 508 F.2d at 246; Terry v. Bridgeport Brass Co., 519 F.2d 806, 808 (7th Cir. 1975); Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1233-1234 (8th Cir. 1975); Collins v. United Airlines, 514 F.2d 594, 596-597 (9th Cir. 1975). . Collins v. United Airlines, supra note 332, 514 F.2d at 596; Olson v. Rembrandt Printing Co., supra note 332, 511 F.2d at 1234. . J.App. 61-63. . J.App. 67-71. There was also a notice which was sent only to individuals whose employment terminated prior to a designated date. J.App. 63-67. That notice informed recipients" }, { "docid": "12290104", "title": "", "text": "VII, July 2, 1965. The Court, as Eastern urges, is of the view that individuals whose claims are time barred pursuant to 42 U.S.C. § 2000e-5(g), should be excluded from the class. It is settled that timely compliance with administrative procedures are jurisdictional prerequisites for maintaining a civil action under Title VII. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed. 2d 147 (1974); Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645 (4th Cir. 1964); Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967). Compliance with these procedures requires that a charge of discrimination be filed within one hundred eighty days of the alleged unlawful practice or within three hundred days if the aggrieved person has instituted state or local proceedings on the matter. 42 U. S.C. § 2000e-5(e). Failure to bring charges within the prescribed period, would preclude judicial relief under Title VII. Stebbins v. Nationwide Mut. Ins. Co., 382 F.2d 267 (4th Cir. 1967); EEOC v. Cleveland Mills, 502 F.2d 153, 156 (4th Cir. 1974). One cannot redress grievances through membership in a class where that person would be unable to maintain the action in his or her own right. Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d Cir. 1975); C.A.W. v. New York Telephone Co., 8 CCH E.P.D. ¶ 9542 (S.D.N.Y.1974); Garneau v. Ray-theon Co., 341 F.Supp. 336 (D.Mass. 1972). See also, Ashworth v. Eastern Airlines, Civil Action No. 74-353-R (E. D.Va., June 6, 1975); Gilbert v. General Electric, 59 F.R.D. 267 (E.D.Va.1973), aff’d. 519 F.2d 661 (4th Cir. 1975). In selecting the October 27, 1972 cut-off date in defining the class, it is important to recognize the scope of the exclusion. Plaintiffs’ challenge of Eastern’s maternity policies is an allegation of an ongoing and continuous violation of Title VII. Charges are considered timely so long as the alleged violation is ongoing. Pacific Maritime Assn. v. Quinn, 491 F.2d 1294 (9th Cir. 1974); Macklin v. Spector Freight Systems, 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Belt v. Johnson Motor Lines, 458 F.2d 443 (5th Cir." }, { "docid": "2631846", "title": "", "text": "rule upon the Defendants’ contention that the complaint fails to meet the requirements of Rule 8(a)(2), for I agree that there is no subject-matter jurisdiction over the three causes of action in question. The jurisdiction of this court under § 2000e-5(f) (3) is limited to claims which have been made the subject of a timely charge before the Equal Employment Opportunity Commission (hereinafter “EEOC”). Nishiyama v. N. American Rockwell Corp., supra note 2. Since Plaintiff initially instituted proceedings with the Hawaii Department of Labor, a timely charge before the EEOC would be one filed “within three hundred days after the alleged unlawful employment practice occurred.” § 2000e-5(e). In this case, the EEOC charge was filed on February 20, 1973: alleged unlawful employment practices occurring prior to April 27, 1972 are therefore barred. The court cannot determine which acts happened before or after April 27, 1972 because the first three causes of action fail to specify the dates of the alleged discriminatory practices. Rather than amend his complaint and argue that the discriminatory acts happened after April 27, 1972, the Plaintiff relies instead upon the theory that the Defendant’s unlawful practices have “continuing effects” into the present, and are not subject to the three hundred day time limit of § 2000e-5(e). Some violations are undoubtedly continuing in nature, and not subject to the normal statute of limitations for filing before the EEOC. See Pacific Maritime Ass’n and California Stevedore and Ballast Co. v. Quinn, 491 F.2d 1294 at 1296 (9th Cir. 1974); Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972) ; Molybdenum Corp. v. E.E.O.C., 457 F.2d 935 (10th Cir. 1972); Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir. 1971); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N. Y.1973); Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (S.D.Me.1970); Tippett v. Liggett & Myers Tobacco Co., 316 F. Supp. 292 (M.D.N.C.1970); Motorola, Inc. v. E.E.O.C., 317 F.Supp. 282 (D.Ariz.1968). However, while layoffs followed by failures to rehire, or systems of discrimination against particular groups may be “continuing,” isolated and completed acts against a particular" }, { "docid": "11627304", "title": "", "text": "this jurisdiction that invoking available union grievance machinery tolls “the statute of limitations applicable to the filing of charges with the EEOC . . . .”, Hutchings v. United States Industries, Inc., 423 F.2d 303, 308 (5th Cir. 1970), assuming the claims asserted in the Title VII action are actually raised during the grievance process. Ross v. General Motors Corp., Civil Action No. 17847 (N.D.Ga., Feb. 4, 1975). Similarly, filing an EEOC complaint tolls the state statute of limitations applicable to actions brought under 42 U.S.C. § 1981, even if the EEOC complaint itself is considered to be untimely. Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974); Ross v. General Motors Corp., supra. But see Johnson v. Railway Express Agency, Inc., 489 F.2d 525 (6th Cir. 1973) (no tolling), cert. granted, 417 U.S. 929, 94 S.Ct. 2639, 41 L.Ed.2d 232 (1974). Finally, many courts have also recognized the rule that an EEOC complaint raising claims which may be classified as arising from “continuing discrimination” is not subject to strict limitation under the Title VII filing requirements. See Gates v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974); Pacific Maritime Assoc. v. Quinn, 491 F.2d 1294 (9th Cir. 1974); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972); Cox v. United States Gypsum Co., 409 F.2d 289 (7th Cir. 1969); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N.Y.1973), app. dismissed, 496 F.2d 1094 (2d Cir. 1974) (order not appealable). In the instant case, plaintiff does not contend that she invoked a union grievance procedure, thereby tolling the Title VII limitations period, and, as noted above, her claims under 42 U.S.C. § 1981 have been stricken by amendment. As a result, the issue sub judice turns on the question of whether or not plaintiff’s EEOC complaint could be construed as raising a claim of continuing discrimi nation. Review of the relevant cases indicates that claims are most often deemed “continuing” when they complain of discriminatory hiring practices and are asserted in" }, { "docid": "11739825", "title": "", "text": "a timely EEOC complaint is a jurisdictional prerequisite to suit has not yet been definitively ruled upon by the Court of Appeals for the Fifth Circuit. Cisson v. Lockheed-Georgia Co., supra at note 3. See Guerra v. Manchester Terminal Corp., 498 F.2d 641, 647 n. 6 (5th Cir. 1974). On the other hand, in this district, as well as in other jurisdictions, the vast weight of authority supports the proposition that the 180-day filing requirement is jurisdictional. E. g., Pacific Maritime Assoc. v. Quinn, 491 F.2d 1294 (9th Cir. 1974); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972); Cisson v. Lockheed-Georgia Co., supra; Ross v. General Motors Corp., supra; Loo v. Gerage, 374 F.Supp. 1338 (D.Hawaii 1974); Georgia Power Co. v. EEOC, 295 F.Supp. 950 (N.D.Ga.1968), aff’d, 412 F.2d 462 (5th Cir. 1969). Thus the question becomes how to satisfy the 180-day requirement? In the prior order, this court ruled that plaintiff could satisfy this requirement by proving that “either an overt act of discrimination or a continuing pattern and practice of discrimination occurred within 180 days of the filing of her EEOC complaint.” Stroud v. Delta Air Lines, Inc. at note 2. Plaintiff has alleged that defendant’s failure to reinstate her in 1972, within 180 days of her EEOC complaint, is such an act. If she can show that defendant’s reinstatement decisions in 1972 and 1973 were based upon a continuing discriminatory animous flowing from the prior policies, or if she can show that these decisions were otherwise discriminatory, possibly in retaliation for her seeking a Title VII remedy, she would be entitled to recover. This determination will likely depend on the facts adduced at trial. Alternatively, but unlikely, plaintiff may convince this court that defendant owes all stewardesses previously terminated under the no-marriage and no-divorce policies a legal obligation to reinstate them, irrespective of their present qualifications for the job. This issue is a legal question not yet presented in this action; however, if this court were to rule in favor of plaintiff" }, { "docid": "11739813", "title": "", "text": "(5th Cir. 1973); United States v. Jacksonville Terminal, 451 F.2d 418 (5th Cir. 1971). Plaintiff’s statement may be a correct statement of law, but it relates to evidentiary matters not presented in the instant motion. The fact that evidence of past discrimination may be admissible to show a present violation of Title VII does not mean that the past discrimination, in and of itself, states a separate cause of action entitling a victim of the former discrimination to relief. In order to be entitled to such relief, the party aggrieved must fulfill the jurisdictional prerequisites to initiation of a Title VII complaint. One of these prerequisites requires the filing of a complaint with the EEOC within 180 (formerly 90) days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e). E. g., Macklin v. Spector Freight Sys tems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 986 (1973); Miller v. International Paper Co., 408 F.2d 283, 284-85 (5th Cir. 1969); Cisson v. Lockheed-Georgia Co., 392 F.Supp. 1176 (N.D.Ga., 1975); Ross v. General Motors Corp., Civil Action No. 17847 (N.D.Ga., Feb. 4, 1975). Review of plaintiff’s briefs in opposition to this motion indicates that plaintiff also contends that this court has jurisdiction to enter relief as a direct result of the 1965 termination from employment and the subsequent failure to reinstate plaintiff between 1965 and 1970. Plaintiff contends that “a discriminatory policy or practice, if continuing in nature, may be redressed regardless of whether or not there was a timely filing of an EEOC charge subsequent to a specific act. . . .” This is an accurate statement of the law, as far as it goes; courts considering Title VII matters have uniformly held that “claims which may be classified as arising from ‘continuing discrimination’ [are] not subject to strict limitation under the Title VII filing requirements, [citations omitted].” Cisson v. Lockheed-Georgia Co., supra. This well-recognized principle does not apply in every case, however; an overbroad application of the continuing discrimination principle would effectively eliminate any period of limitations for Title VII actions in eontrovention of congressional intent and in possible derogation of" }, { "docid": "12290105", "title": "", "text": "Cir. 1974). One cannot redress grievances through membership in a class where that person would be unable to maintain the action in his or her own right. Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d Cir. 1975); C.A.W. v. New York Telephone Co., 8 CCH E.P.D. ¶ 9542 (S.D.N.Y.1974); Garneau v. Ray-theon Co., 341 F.Supp. 336 (D.Mass. 1972). See also, Ashworth v. Eastern Airlines, Civil Action No. 74-353-R (E. D.Va., June 6, 1975); Gilbert v. General Electric, 59 F.R.D. 267 (E.D.Va.1973), aff’d. 519 F.2d 661 (4th Cir. 1975). In selecting the October 27, 1972 cut-off date in defining the class, it is important to recognize the scope of the exclusion. Plaintiffs’ challenge of Eastern’s maternity policies is an allegation of an ongoing and continuous violation of Title VII. Charges are considered timely so long as the alleged violation is ongoing. Pacific Maritime Assn. v. Quinn, 491 F.2d 1294 (9th Cir. 1974); Macklin v. Spector Freight Systems, 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Belt v. Johnson Motor Lines, 458 F.2d 443 (5th Cir. 1972); Younger v. Glamorgan Pipe & Foundry Co., 310 F. Supp. 195 (W.D.Va.1969). Moreover, the filing of an action by a member of a class tolls the statute of limitation for all members of the class, even for unnamed class members who have not yet filed complaints with the EEOC. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, n.8, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975). Thus, the only persons excluded from the class are those who terminated their employment with Eastern prior to October 27, 1972 and failed to lodge a timely complaint with the Equal Employment Opportunity Commission. Plaintiffs cite Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974) and Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974), for the proposition that class membership should not be tied to the time period for filing charges under Title VII. Those cases, however, deal with the time" }, { "docid": "22312916", "title": "", "text": "she left the university — or, possibly, when a replacement was hired. See Gates v. Georgia-Pacific Corp., 492 F.2d 292, 294-95 (9th Cir. 1975); Johnson v. University of Pittsburgh, 359 F.Supp. 1002, 1007 (W.D.Pa.1973). One final reason remains to prevent us from regarding Dr. Egelston’s complaint as time-barred. She alleges that the discrimination against her was not an isolated act, but rather constituted a part of the college’s continuing policy to deny women access to its upper echelons. And, at the time of filing, Dr. Egelston was still an employee of the college injured by the practice. A principal purpose of a statute of limitations is to bar stale complaints; yet, according to Dr. Egelston’s complaint, the discriminatory policy here was still fresh. These allegations of continuing discrimination are sufficient to constitute a timely filing with the agency. See, e. g., Macklin v. Spector Freight Systems, Inc., 156 U.S. App.D.C. 69, 478 F.2d 979, 987 (1973); Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972); Kohn v. Royall, Koegel & Wells, 59. F.R.D. 515, 518-19 (S.D.N.Y.1973), appeal dismissed 496 F.2d 1094 (2d Cir. 1974); cf. United States v. Sheet Metal Workers International Assn., 416 F.2d 123 (8th Cir. 1969). See also Developments — Title VII, 84 Harv.L.Rev. 1109, 1210 (1971). It may well be, of course, that appellant will be unable to demonstrate the existence of a policy of discrimination. Indeed, she may fail to prove that her own discharge was improperly motivated. These issues are, however, best decided after trial — or, at the very least, upon a motion for summary judgment, Fed.R.Civ.P. 56, perhaps after discovery has taken place. But, they cannot be resolved upon a motion to dismiss this complaint. That Dr. Egelston may ultimately not prevail in her claims does not justify denying her the opportunity to litigate them. Reversed and remanded. . The complaint also grounded jurisdiction in 42 U.S.C. § 1983 and the Fourteenth Amendment. Since we hold that appellant has stated a valid cause of action under Title VII," }, { "docid": "4285833", "title": "", "text": "Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973) ; Belt v. Johnson, 458 F.2d 443 (5th Cir. 1972); Bartmess v. Drewry’s U.S.A. Inc., 444 F.2d 1186 (7th Cir. 1971); Tippett v. Liggett & Myers Tobacco Company, 316 F.Supp. 292 (M.D.N.C.1970). Likewise, the Fourth Circuit has recognized in dicta that acts of past discrimination can be carried forward to injure a plaintiff by a present pattern of conduct. Robinson v. Lorillard Corporation, 444 F.2d 791 (4th Cir. 1971). While AFS acknowledges these principles, it is also convinced that the final act of the purported sex discrimination against the named counterplaintiffs occurred when they terminated their employment and were refused retirement benefits by the Trustees. To support this theory, AFS cites Phillips v. Columbia Gas of West Virginia, Inc., 347 F. Supp. 533 (S.D.W.Va.1972) where Chief Judge Cristie held that a firing is a single act of employment discrimination without continuing effect because it ends any relationship between the plaintiff and the defendant. Additionally, AFS contends that McCarty v. Boeing Company, 321 F.Supp. 260 (W.D.Wash. 1970) directly refutes the argument that the operation of a purportedly biased retirement plan constitutes continuing discrimination from the date of termination to the present. In that case, the court dismissed the charges of former employees which were not brought within ninety days of their retirement to protect the employer from the danger of stale claims in the distant future. Other decisions indicate, however, that an illegal practice continues whenever the released employee has a bare possibility of recall or reconsideration for promotion to a certain job position. Cox v. United States Gypsum, 409 F.2d 289 (7th Cir. 1969); Jamison v. Olga Coal Company, 335 F.Supp. 454 (S.D.W.Va.1971); Banks v. Lockheed-Georgia Company, 46 F.R.D. 442 (N.D.Ga.1968). In Macklin v. Spector Freight Systems, supra, Judge Wright remarked: As we read appellants’ initial complaints to the EEOC, they attack Spector and the local, not merely for an isolated refusal of employment occurring in early 1967, but for maintaining and supporting a discriminatory hiring system throughout 1967 and 1968. Allegations that a discriminatory hiring system continues to exist and" }, { "docid": "7597751", "title": "", "text": "S.Ct. 400, 404, 24 L.Ed.2d 386, 392 (1969). Defendant contends that § 1981 does not provide a cause of action for white persons who are the victims of alleged racial discrimination, Agnew v. City of Compton, 239 F.2d 226 (9th Cir. 1956), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957); Kurylas v. United States Department of Agriculture, 373 F.Supp. 1072, 1075-76 (D.D.C.1974), aff’d, 169 U.S.App.D.C. 58, 514 F.2d 894 (1975); Ripp v. Dobbs Houses, Inc., 366 F.Supp. 205, 211 (N.D.Ala.1973); Perkins v. Banster, 190 F.Supp. 98, 99 (D.Md.), aff’d, 285 F.2d 426 (4th Cir. 1960). See Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973), and, in the alternative, that § 1981 does not apply to private educational institutions, see Cornelius v. Benevolent Protective Order of Elks, 382 F.Supp. 1182, 1196-1203 (D.Conn.1974). See also McCrary v. Runyon, 515 F.2d 1082 (4th Cir. 1975), cert. granted, 423 U.S. 945, 96 S.Ct. 354, 46 L.Ed.2d 276, 44 U.S.L.W. 3279 (1975). Section 1981 was originally enacted as part of § 1 of the Civil Rights Act of 1866, pursuant to Congress’ power under the Thirteenth Amendment, and was intended to “protect a limited category of rights, specifically defined in terms of racial equality.” Georgia v. Rachel, 384 U.S. 780, 791, 86 S.Ct. 1783, 1789, 16 L.Ed.2d 925, 933 (1966). See, e. g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 993-94 & n.26 (1973); Jones v. United Gas Improvement Corp., 68 F.R.D. 1, 15 (E.D.Pa.1975). Senator Lyman Trumbull of Illinois, the Senate floor manager of the Civil Rights Act of 1866, stated expressly that the bill was intended to protect “white men as well as black men” and “declares that all persons in the United States shall be entitled to the same civil rights . . . . [The bill is intended] to secure equal rights to all the citizens of the country.” Cong. Globe, 39th Cong., 1st Sess. 599 (1866). The House, in amending the bill to include," }, { "docid": "846481", "title": "", "text": "addressed to “Ms. Lo Re” (outside the 180 day period) and the events which led to her final rejection for employment in March (within the 180 day period). These events beginning with the receipt of a January 5, 1973 letter informing “Mr. Lo Re” of job openings, including Lo Re’s protests of sex discrimination, and culminating in her final March rejection obviously are part of what is alleged to be a continuing pattern of discriminatory treatment and fall readily within the “continuing violation” doctrine. See Stroud v. Delta, 392 F.Supp. 1184, 1189 (N.D.Ga.1975); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515, 518 (S.D.N.Y.1973); Hecht v. Cooperative for Amer. Relief Everywhere, Inc., supra, 351 F.Supp. at 306 n. 1. Class Determination Whether the present action may be maintained as a class action depends, of course, on a showing that it meets the requirements of Fed.R.Civ.P. 23. It is too well-established to require extensive citation that a class action is the appropriate and logical vehicle for a suit alleging sex discrimination under Title VII. See, e. g., Wetzel v. Liberty Mutual Insur. Co., 508 F.2d 239 (3rd Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); Bowe v. Colgate-Palmolive Co., supra. This does not mean, of course, that a class action is appropriate in every case. Defendants’ central objection to class certification is that this case involves an inquiry into the individual situations of each plaintiff; thus, defendants contend that because it may become necessary to examine the individual qualifications and circumstances of each plaintiff there is no common question of law or fact (Rule 23(a)(2)), plaintiffs’ claims are not “typical” of the proposed class (Rule 23(a)(3)), and defendants have not acted upon grounds generally applicable to the class (Rule 23(b)(2)). Turning first to the requirements of Rule 23(a)(2), the Court has already noted that the claims of Brady, LoRe, and Shane, along with those of the seven other plaintiffs who seek to join in this action, all present essentially the same issue — whether CMC" }, { "docid": "2631847", "title": "", "text": "April 27, 1972, the Plaintiff relies instead upon the theory that the Defendant’s unlawful practices have “continuing effects” into the present, and are not subject to the three hundred day time limit of § 2000e-5(e). Some violations are undoubtedly continuing in nature, and not subject to the normal statute of limitations for filing before the EEOC. See Pacific Maritime Ass’n and California Stevedore and Ballast Co. v. Quinn, 491 F.2d 1294 at 1296 (9th Cir. 1974); Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972) ; Molybdenum Corp. v. E.E.O.C., 457 F.2d 935 (10th Cir. 1972); Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir. 1971); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N. Y.1973); Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (S.D.Me.1970); Tippett v. Liggett & Myers Tobacco Co., 316 F. Supp. 292 (M.D.N.C.1970); Motorola, Inc. v. E.E.O.C., 317 F.Supp. 282 (D.Ariz.1968). However, while layoffs followed by failures to rehire, or systems of discrimination against particular groups may be “continuing,” isolated and completed acts against a particular individual are not. See, e. g., Gordon v. Baker Protective Services, 358 F.Supp. 867 (N.D.Ill.1973). Once a disparaging remark is made, or a transfer is denied, or a demeaning work assignment is given, it is, without more, a completed and isolated act: such practices do not give the Plaintiff a perpetual right to file charges before the EEOC. See, e. g., Moore v. Sunbeam, 459 F.2d 811, 828-929 (7th Cir. 1972). Although Plaintiff’s complaint alleges in the first three causes of action a series of related acts, such as continual disparaging remarks, not one series is supported by a specific unlawful act alleged to have occurred after April 27, 1972. Under these circumstances, and given the generality of the complaint, the alleged discrimination cannot be said to have continued beyond April 27, 1972. Motion to Strike Demand For Jury Trial: There is no right to a jury trial in a Title VII action. See, e. g., Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir. 1971), cert. denied, 404 U.S. 1006, 92 S.Ct. 573," }, { "docid": "5343428", "title": "", "text": "the Equal Employment Opportunity Commission until November 13, 1972. Thus, the district court held that the charge concerning the promotion was not timely filed and it therefore lacked jurisdiction. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In our view, however, Cedeck was challenging more than her failure to be promoted to a particular job at a particular time. She also alleged that defendant had failed to consider her for promotion and in this connection she testified that some time after Sextro was hired as the branch manager, she made an inquiry to him about the possibility of being named assistant manager. He replied that he would check into it but nothing else was said. In September of 1972, Hamiltonian hired at least one assistant branch manager. Thus, it would appear that Cedeck was concerned not only with her failure to be promoted to the manager’s position but also with her overall upward mobility in the Hamiltonian organization. In this light, the alleged unlawful employment practice was a continuing one which did not terminate until at least September of 1972. See generally Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1233-34 (8th Cir. 1975); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 986-88 (1973); Richard v. McDonnell Douglas Corp., 469 F.2d 1249, 1252-53 (8th Cir. 1972); Cox v. United States Gypsum Co., 409 F.2d 289, 290-91 (7th Cir. 1969). But see Gates v. Georgia-Pacific Corp., 492 F.2d 292, 294-95 (9th Cir. 1974); Moore v. Sunbeam Corp., 459 F.2d 811, 827-28 (7th Cir. 1972). It follows that the charge was timely filed and the court had jurisdiction. The district court stated that “Assuming arguendo that jurisdiction exists over defendant’s failure to promote plaintiff, the Court concludes that the failure to promote was not the result, in whole or in part, of discrimination on the basis of sex.” Cedeck v. Hamiltonian Federal Savings and Loan Ass’n, supra, 414 F.Supp. at 498. The court further found that “Title VII has not been violated as termination was not the result of" }, { "docid": "9442057", "title": "", "text": "W.D.Va., 1969, 310 F.Supp. 195, 197 (job transfer) ; Hutchings v. U. S. Industries, Inc., D.C., E.D.Tex., 1969, 309 F.Supp. 691, 693 (discontinuance of job assignment), reversed on other grounds, 5 Cir., 1970, 428 F.2d 303; Griffin v. Pacific Maritime Ass’n, 9 Cir., 1973, 478 F.2d 1118, 1120 (layoff) ; Gordon v. Baker Protective Services, Inc., D.C., N.D.Ill., 1973, 358 F.Supp. 867 (discontinuance of job assignment) ; Guerra v. Manchester Terminal Corp., D.C., S.D.Tex., 1972, 350 F.Supp. 529 (job transfer). . The only case cited involving a demand for access to evidence, Molybdenum Corp. of America v. EEOC, 10 Cir. 1972, 457 F.2d 935, held that the charge was timely. There were two refusals to hire, one of which was within the time limit. . A charge filed by a layman should be liberally construed, Cox v. U. S. Gypsum Co., 7 Cir., 1969, 409 F.2d 289, 290; “A layman’s claim of ‘continuing’ discrimination, after a discriminatory layoff, readily suggests that he claims there has been a subsequent recall or new hiring which discriminates against him.” See also Graniteville Co. (Sibley Division) v. EEOC, supra. . Cox v. U. S. Gypsum Co., supra; Sciaraffa v. Oxford Paper Co., D.C., Me., 1970, 310 F.Supp. 891 (layoff followed by failure to rehire) ; Banks v. Lockheed-Georgia Co., D.C., N.D.Ga., 1968, 46 F.R.D. 442 (discriminatory system of hiring) ; Boudreaux v. Baton Rouge Marine Contracting Co., 5 Cir., 1971, 437 F.2d 1011, 1014-1015 (discriminatory system of assigning work) ; Belt v. Johnson Motor Lines, Inc., 5 Cir., 1972, 458 F.2d 443 (discriminatory system of transferring to better jobs) ; Motorola, Inc. v. EEOC, D.C., Ariz., 1968, 317 F.Supp. 282 (practice of discrimination against Negroes, Spanish surnamed, and Indians)." }, { "docid": "17753934", "title": "", "text": "444, 44 U.S.L.W. 4356, 4363 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 449, 95 S.Ct. 2362, 2387, 45 L.Ed.2d 280, 316 (1975) (Burger, C. J., concurring in part and dissenting in part), a party to a Title VII action does not have a right to a trial by jury. Slack v. Havens, 522 F.2d 1091 (C.A.9, 1975); EEOC v. Detroit Edison Co., 515 F.2d 301 (C.A.6, 1975), petition for cert. filed, 44 U.S.L.W. 3214 (U.S. Oct. 7, 1975); Robinson v. Lorillard Corp., 444 F.2d 791 (C.A.4, 1971), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971), 404 U.S. 1007, 92 S.Ct. 651, 30 L.Ed.2d 655 (1972); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (C.A.5, 1969). As an essential corollary to this principle, it has been held that punitive, exemplary and actual damages are not recoverable in a Title VII proceeding. Loo v. Gerarge, 374 F.Supp. 1338 (D.Haw.1974); Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973). In addition to extensive equitable relief, plaintiffs also seek punitive, exemplary and actual damages. For example, they seek to recover for the humiliation and embarrassment allegedly resulting from the Company’s alleged discriminatory employment practices. (Docket Item 29, par. 14) Section 1981, which provides a route independent of Title VII for redressing discriminatory employment practices, can provide the statutory basis for the award of punitive and actual damages. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460, 95 S.Ct. 1716,1720, 44 L.Ed.2d 295, 301 (1975). In Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 738, 24 L.Ed.2d 729, 736 (1970), the Court set forth three factors to consider in determining if the right to a jury trial on an issue was protected by the Seventh Amendment: (1) custom before the merger of law and equity, (2) remedy sought, and (3) practical abilities and limitations of juries. First, an “action brought under statutes forbidding racial discrimination is fundamentally for the redress of a tort,” Tillman v. Wheaton-Haven Recreation Ass’n, 517 F.2d 1141, 1143 (C.A.4, 1975), somewhat akin to an action for defamation or intentional" }, { "docid": "19708622", "title": "", "text": "U.S. C. § 2000e-5(e) (Supp. II, 1972) is that of the filing of the original, as opposed to the amended, complaint. See note 7 supra. . Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186, 1188 (7th Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 252 (1971). See, e. g., Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 986-87 (1973); Loo v. Gerarge, 374 F.Supp. 1338, 1340 (D.Hawaii 1974) ; Kohn v. Royall, Koegel and Wells, 59 F.R.D. 515, 518 (S.D.N.Y.1973). . See, e. g., Moore v. Sunbeam Oorp., 459 F.2d 811 (7th Cir. 1972) ; Ortega v. Construction & Gen’l Laborers’ Union No. 890, 396 F.Supp. 976 (D.Oonn.1975). . Rule 23(a) provides: “Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class.” . As is suggested from a reading of Rule 23(c) (1) : “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.” . 15 U.S.C. § 1640(a)(1) sets a $100 floor on damage awards made in federal truth-in-lending actions. . 8 E.P.D. ¶ 9479 (E.D.Pa.1974). . The court later certified a (b) (2) class action, involving 839 black employees, as well as future employees and rejected applicants. Dickerson v. U. S. Steel Corp., 64 F.R.D. 351 (E.D.Pa.1974). . Huff v. N. D. Cass Co. of Alabama, 485 F.2d 710, 712 n. 3 (5th Cir. 1973). . Id., at 713. . 393 F.Supp. 24, 33 (S.D.N.Y.1975). . 372 F.Supp." }, { "docid": "11627305", "title": "", "text": "Title VII filing requirements. See Gates v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974); Pacific Maritime Assoc. v. Quinn, 491 F.2d 1294 (9th Cir. 1974); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972); Cox v. United States Gypsum Co., 409 F.2d 289 (7th Cir. 1969); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N.Y.1973), app. dismissed, 496 F.2d 1094 (2d Cir. 1974) (order not appealable). In the instant case, plaintiff does not contend that she invoked a union grievance procedure, thereby tolling the Title VII limitations period, and, as noted above, her claims under 42 U.S.C. § 1981 have been stricken by amendment. As a result, the issue sub judice turns on the question of whether or not plaintiff’s EEOC complaint could be construed as raising a claim of continuing discrimi nation. Review of the relevant cases indicates that claims are most often deemed “continuing” when they complain of discriminatory hiring practices and are asserted in behalf of a class. See Macklin v. Spector Freight Systems, Inc., supra; Kohn v. Royall, Koegel & Wells, supra; Banks v. Lockheed-Georgia Co., 46 F.R.D. 442, 444 (N.D.Ga.1968). Although the Kohn case ruling was deemed equally applicable to individual as well as class complaints, id. at 523 (on reconsideration), the appropriate factor deemed controlling may have been the class action aspect: [O]rdinarily, refusal to hire is not a continuing violation. Molybdenum Corp. v. EEOC, 457 F.2d 935 (10th Cir. 1972). However, where, as here, the complaining party alleges that the refusal of employment results from an ongoing pattern and practice of discrimination and seeks to represent the entire class of persons allegedly discriminated against, his or her individual grievance provides merely the springboard from which to investigate the employer’s alleged continuing violation with respect to the class as a whole. The refusal to hire, which is isolated as to the individual, forms one item in an ongoing series of violations with respect to the class, the many elements of which are linked by their common" }, { "docid": "10701795", "title": "", "text": "MEMORANDUM OPINIONS AND ORDERS NEESE, District Judge. This is an action seeking judicial enforcement of the federally-protected civil rights of the plaintiffs under the Equal Employment Opportunities Act, 42 U.S. C. § 2000e et seq. (Title VII, Civil Rights Act of 1964). The defendant moves for a dismissal on the grounds that this Court lacks jurisdiction over the subject matter, Rule 12(b)(1), and for failure to state a claim on which relief can be granted, Rule 12(b)(6), Federal Rules of Civil Procedure. The defendant is mistaken in its contention that 42 U.S.C. § 2000e-4 allows the Equal Employment Opportunity Commission (EEOC) no more than 90 days following the receipt of a charge of discrimination to give aggrieved persons notice of its inability to obtain voluntary compliance. “* * * [T] he time period within which the Commission must notify the complainant after its attempt to obtain voluntary compliance is nowhere prescribed. Consequently, the statute contains no definite overall time limitation which could bar the instant suit. * * * ” Choate v. Caterpillar Tractor Company, C.A. 7th (1968), 402 F.2d 357, 361 [5]; accord: Miller v. International Paper Company, C.A. 5th (1969), 408 F.2d 283, 285-287 [2], Sanchez v. Standard Brands, Inc. C.A. 5th (1970), 431 F.2d 455, 460 [1]. The defendant is also mistaken in its contention that the charges of the plaintiffs, other than the charge of illegal discrimination acts in the company lay-off commencing October 1, 1969, were untimely within the contemplation of 42 U.S.C. § 2000e-5(d). The complaint claims that these violations alleged were constant and continuous, although several specific acts are set forth as illustrative of the pattern. Thus, the 90-day period for filing the charge does not bar this action. Sciaraffa v. Oxford Paper Company, D.C.Me. (1970), 310 F.Supp. 891, 896 [2], cit ing: Cox v. United States Gypsum Co., C.A.7th (1969), 409 F.2d 289, 290 [3]; Banks v. Lockheed-Georgia Co., D.C.Ga. (1968), 46 F.R.D. 442; Culpepper v. Reynolds Metal Co., D.C.Ga. (1968), 296 F.Supp. 1232, 1236; King v. Georgia Power Co., D.C.Ga. (1968), 295 F.Supp. 943, 946. The plaintiffs have cured by amendment" }, { "docid": "7624241", "title": "", "text": "that the racial and religious discrimination which he alleged in his 1968 administrative complaints can be characterized as a continuing violation, rather than as discrete acts of discrimination. Allegations of a continuing discriminatory failure to promote have been considered by many courts to constitute a claim of a “continuing violation” under Title VII or § 1981. See, e. g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied, 434 U.S. 1069, 98 S.Ct. 1251, 55 L.Ed.2d 772 (1978). Rich v. Martin Marietta Corp., 522 F.2d 333, 348 (10th Cir. 1975); Corbin v. Pan American World Airways, Inc., 432 F.Supp. 939, 944 (N.D.Cal.1977); Stallings v. Container Corp. of America, 75 F.R.D. 511, 515 (D.Del.1975); Mack v. General Electric Co., 329 F.Supp 72, 77-78 n. 6 (E.D. Pa.1971). In the case of a continuing violation, a plaintiff may file charges or institute an action at any time during which the alleged violation has taken place. Such a charge or action will not be barred by the applicable statute of limitations, even though some of the acts complained of occurred outside of the limitations period. See, Wetzel, supra at 246; Rich, supra at 348 n. 15; Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 77, 478 F.2d 979, 987 (D.C.Cir.1973). It is not clear from the face of Guilday’s complaint in this case that he actually alleges a continuing violation. The complaint consists largely of a description of the administrative complaints which Guilday filed and the events surrounding the processing of those complaints. The complaint nowhere states that the discrimination complained of continues “to the present” or that the INS promotion system as a whole is discriminatory. However, the administrative record indicates that Guilday alleged a continuing discriminatory failure to promote on grounds of race and religion in the course of the hearing on his 1968 administrative complaints. The 1968 complaints necessarily dealt with events prior to the fall of 1968. However, the principle that" } ]

[ { "docid": "22301964", "title": "", "text": "a confession may be regarded as a paper or document “obtained” from the defendant. But reading the language of the rule in the light of the history involved in its formulation and in its context, we do not believe that such was its intended legal connotation and purpose here. The Notes of the Advisory Committee undertook to point out that it was doubtful whether discovery was permissible in criminal cases under existing law, and then added, as to the intended scope of the formulated rule, the following: “The courts have, however, made orders granting to the defendant an opportunity to inspect impounded documents belonging to him. * * * The rule is a restatement of this procedure. In addition, it permits the procedure to be invoked in cases of objects and documents obtained from others by seizure or by process, on the theory that such evidential matter would probably have been accessible to the defendant if it had not previously been seized by the prosecution. The entire matter is left within the discretion of the court.” In the Preliminary Draft of the Rules which the Advisory Committee initially prepared arid submitted to the bar and the bench' for consideration and suggestion, a rule (then Rule 19) was proposed allowing discovery as to “any designated books, papers, documents, or tangible objects, not privileged,” without the qualification added in. the later -drafts, “obtained from or belonging to the defendant or obtained from. others by. seizure or by process.” Paralleling -the indication of the scope of the final draft of the rule contained in the Notes of the Advisory Committee, one of the members of that Committee, at the searching Institute held on the Rules at New York University School, of Law in February, 1946, summarized the effect of the rule and its qualification, as ‘.‘protecting the right of the defendant to have access to his own papers, to his own property, as well as to property seized from others by process, which may be material to his defense.”. See New York School of.Law Institute Proceedings, Vol. VI, p. 167. There were some" } ]

[ { "docid": "15777309", "title": "", "text": "agents of the Federal Bureau of Investigation. While the motion papers do not describe the rule under which the relief is sought, it is apparent that it must be sought, if at all, under Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C. This Rule allows the Court, upon motion of the defendant, to order the attorney for the government to permit the defendant to inspect and copy or photograph designated papers “obtained from or belonging to the defendant * * * upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.” Whether such an order should be granted under this Rule, insofar as it relates to signed statements or confessions given by a defendant after his arrest and before his arraignment, is a matter of discretion for the Court. The extent to which pre-trial discovery should be allowed in criminal proceedings has been the subject of much discussion. The Common Law recognized no right of discovery in criminal cases. Rex v. Holland, 4 T.R. 691, 100 Eng.Reprint 1248 (1792). However, in England today, disclosure is an accepted part of criminal procedure. No accused person can be brought to trial without a preliminary hearing at which all of the witnesses give their testimony and at which the accused may be present and may question the witnesses. 6 Wigmore, Evidence (3rd Ed. 1940), pp. 394, 395. It has been suggested by a distinguished jurist that the same procedure should be followed in this Country. Frank, “Courts on Trial”, p. 99 (1949). Although a broad right of discovery has been extended to civil cases, no such broad right exists in criminal cases up to the present time in this Country. The distinction has a logical basis, for in a civil case each side may take the deposition of the other, whereas in a criminal ease the government has no power to take a pre-trial deposition of the defendant. However, when documents belonging to the defendant are seized, the Court has power to allow the defendant to inspect and" }, { "docid": "18249522", "title": "", "text": "CASHIN, District Judge. The indictment in this case was filed on March 24, 1960. It contains 160 counts, all of which relate to the offer and sale of stock in Gulf Coast Leaseholds, Inc. The gravamen of the indictment is that the mails and interstate wire communications were used to sell these unregistered securities and that such sales were effected by fraud. The indictment names twenty defendants and twenty-eight co-conspirators. Numerous pre-trial motions have been made by a number of the defendants. For convenience, the motions will be discussed in groups composed of those which present the same or similar issues. Discovery and Inspection Defendants, Du Val, Du Val’s Consensus, Inc., Kelly, Stahl, Van Allen, Teller, Bean and Singer, Bean & Mackie, Inc., have all made motions for discovery and inspection under Rules 16 and 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Rule 16 provides for a very limited discovery. Before the adoption of this rule it was doubtful whether the existing law permitted any discovery in criminal cases. (The Advisory Committee Note to Rule 16). In United States v. Peltz, D.C.S.D.N.Y.1955, 18 F.R.D. 394, Judge Herlands discusses the history of Rule 16 and concludes quite correctly that it was not intended to give a defendant an unlimited right of discovery and inspection. Before a defendant is entitled to discovery certain requirements must be met: 1. The evidence must consist of tangible objects such as books, papers, documents, etc.; 2. These objects must belong to or been obtained from the defendants or obtained from others by seizure or process; 3. The objects sought must be shown to be material to the preparation of the defense; 4. The request must be shown to be reasonable. It seems clear that a discovery procedure must be governed by Rule 16. Rule 17 (c) is not a discovery rule but, rather, its purpose is to shorten a trial by requiring the production before trial of documents subpoenaed for use at the trial. As the Supreme Court said in Bowman Dairy Co. v. United States, 1951, 341 U.S. 214, 220, 71 S.Ct." }, { "docid": "4901077", "title": "", "text": "FORD, District Judge. This motion contains a request under Rule 16, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, to inspect and copy or photostat 20 writings of an assorted nature. The government attorneys have agreed with counsel for the defendant to furnish them with most of the documents and records which they actually have in their possession and the controversy at present involves items 14: “All typewritten statements prepared by the defendant and delivered to any member or representative of the United States Government”; 17: “A statement prepared by the defendant in Paris in 1945 outlining his activities in Germany, which was delivered to one of the representatives of the United States Government”; and 20: “Any and all recordings which it is claimed were made by the defendant, taken by the Government from anyone.” Rule 16, Federal Rules of Criminal Procedure, relates to documents in the possession of the government “obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.” The following statement made by a member of the Supreme Court Advisory Committee at the Institute on the rule conducted by the New York University School of Law explains the purpose of this rule: He stated: “It often happens when a prosecution is begun by presenting a case to the grand jury that the government seizes books and papers and property and has them impounded so that it (sic) is within the exclusive jurisdiction and possession of the United States Attorney. It often happens, too, that the defendant needs to have access to some books, papers, and objects in order properly to prepare his defense, * * In the Preliminary Draft of the Federal Rules of Criminal Procedure, the rule (then Rule 19) with respect to discovery and inspection did not limit the discovery to designated books, etc., “obtained from or belonging to the defendant.” There the rule referred to “any” designated books, etc. In the second preliminary draft" }, { "docid": "5775060", "title": "", "text": "* * * copies of all appraisal reports obtained by defendants from their appraisal experts and to permit the inspection and copying or photographing thereof.” The affidavit concludes: “Discovery at this time and prior to trial of the said appraisal reports and other documents is necessary to enable the defendants to prepare adequately their case for trial and it will facilitate proof and aid in the progress of the trial and. particularly in the cross-examination of the said appraisal experts who will testify for the government.” Rule 34 empowers the court, upon motion of any party “showing good cause therefor”, to order any other party to the action who may have “in his possession, custody, or control” such obr jects “to produce and permit the inspection and copying or photographing * * of any designated documents, papers * * * letters, photographs- * * * or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) * * *.” Fed.Rules Civ.Proc., Rule 34, 28 U.S.C.A. at 281; see Notes of Advisory Committee on Amendments to Rules, foil. Rule 34, id. at 281-282. Within the scope of examination authorized by Rule 26(b) is “any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * including the existence, description, nature, custody, condition and location of any * * * documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.” Rule 26 (b), id. at 168. Moreover, the scope of the examination thus specifically authorized is broadened by the general provision of Rule 26(b) that: “It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” [Ibid.; see Notes of Advisory Committee on Amendments to Rules, foil. Rule 30, id. at 171-172.] The documents sought to be discovered by means of the motion at bar are sufficiently “designated” as required by the rule, since" }, { "docid": "23170646", "title": "", "text": "practice of courts generally to require the production of such statements under such circumstances. The courts have traditionally left a lawyer to his own industry aided by the use of depositions, interrogatories and subpoenas. A court is not justified in ordering a litigant to permit his adversary to inspect witness statements, which he has procured in preparing for trial, upon the adversary’s mere surmise or suspicion that he might find impeaching material in the statements. In such a situation the rights of a litigant in the work-product of his lawyers and agents are not required to give way to an adversary’s right of discovery. Hickman v. Taylor, and Alltmont v. United States, supra. A construction at this time extending the scope of Rule 34 to cover such a situation, which is commonplace in thousands of pending cases, both at law and equity, would be not only unjustified by the provisions of that rule but would also be a startling innovation, which, in no small measure, would revolutionize the practice of law in the federal courts. In the absence of language in Rule 34 clearly indicating such a drastic change in the settled methods of the practice of the law, we are unwilling to startle the members of the bar by the announcement of the interpretation suggested by plaintiff. Accordingly, the order of the District Court appealed from, is reversed. . Rule 34, 28 U.S.C.A. . Rule 34 Federal Rules of Civil Procedure, 28 U.S.C.A.: “Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control; or (2) order any party to" }, { "docid": "21436908", "title": "", "text": "to what may be inspected prior to trial. In the Bowman opinion, after pointing out that Rule 16 of the Federal Rules of Criminal Procedure provides “a limited right of discovery,” the Court declares that: “It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to- give a right of discovery in the broadest terms. * * * Rule 17 (c) was not intended to provide -an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials.” Id. 341 U.S. at page 220, 71 S.Ct. at page 679. As observed in the opinion of the Court of Appeals, Id., 7 Cir., 1950, 185 F.2d 159, 162-163: “The history of the development of Rule 16 shows that the limitations appearing therein were deliberately inserted.” Furthermore, the notes of the Advisory Committee appended to Rule 16, 18 U.S.C.A. p. 224 state that even with' respect to the limited discovery' therein provided: “The entire matter is left within the discretion of the court.” See United States v. Schiller, 2 Cir., 1951, 187 F.2d 572, 575. What a defendant may move to “inspect and copy or photograph” pursuant to Rule 16 is expressly limited to material “obtained from or belonging to the defendant or obtained from others by seizure or by process,” -and such inspection is conditioned ex vi termini “upon a showing that the items sought may be material to the preparation of * * * defense and that the request is reasonable.” What additional material may be subjected to a defendant’s inspection prior to trial depends upon proper interpretation of the last sentence of Rule 17(c): “The court may direct that, books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties" }, { "docid": "22301963", "title": "", "text": "impeach them,” even though such statements have not been used by the witnesses in testifying or by the Government in its interrogation of them. But appellant would distinguish between the discovery right before trial of an accused to a copy of his own confession and his right to copies of the statements of witnesses generally which the Government has taken. He argues that a confession falls within Rule 16, Federal Rules of Criminal Procedure, 18 U.S.C.A. promulgated subsequent to the cases to which we have referred. That rule provides: “Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.” In a general sense, of course, a confession may be regarded as a paper or document “obtained” from the defendant. But reading the language of the rule in the light of the history involved in its formulation and in its context, we do not believe that such was its intended legal connotation and purpose here. The Notes of the Advisory Committee undertook to point out that it was doubtful whether discovery was permissible in criminal cases under existing law, and then added, as to the intended scope of the formulated rule, the following: “The courts have, however, made orders granting to the defendant an opportunity to inspect impounded documents belonging to him. * * * The rule is a restatement of this procedure. In addition, it permits the procedure to be invoked in cases of objects and documents obtained from others by seizure or by process, on the theory that such evidential matter would probably have been accessible to the defendant if it had not previously been seized by the prosecution. The entire matter is left within the discretion of the" }, { "docid": "11419574", "title": "", "text": "thereafter all laws -in conflict therewith shall be of no further force and effect.” Fed.Rules Crim.Proc. rule 16, 18 U.S.C.A. is the only one dealing with the subject and reads as follows: “Rule 16 Discovery and Inspection “Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. * * *” The Advisory Committee’s note under this rule states: “Whether under existing law discovery may be permitted in criminal cases is doubtful * * *. The entire matter is left within the discretion of the court.” [Emphasis added.] Since there is no evidence that the statement of Adams was obtained “by seizure or by process,” it is obvious that the rule does not literally cover the situation with which we are dealing. But the principle of discovery and inspection, whenever allowed, is established by the Rule and includes these ingredients: There must be a showing that the items sought “may be material to the preparation of his defense and that the request is reasonable.” The Advisory Committee’s note makes it clear that the sufficiency of that showing shall be within the discretion of the District Court. (b) In the same year Congress passed the Act under which the rules were promulgated and shortly before the Committee and the Supreme Court collaborated in their preparation, fresh in their minds was the long-pending and much-publicized case of United States v. Socony-Vacuum Oil Co., (argued Feb. 5th and decided May 6, 1940) 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129. What the Supreme Court there decided was the then existing law with respect to requiring the Government to permit the defendant to inspect statements taken from witnesses and it applies exactly to the" }, { "docid": "5340278", "title": "", "text": "DIMOCK, District Judge. This is a motion by nine defendants for an order pursuant to Rules 16 and 17 (c) of the Federal Rules of Criminal Procedure, 18 U.S.C., directing the United States Attorney to permit them to inspect, copy or photograph certain books, papers and records in the possession of the Government. These defendants, wholesale egg dealers, are named among 21 defendants in an indictment charging that they conspired in violation of section 371 of title 18, United States Code, to bribe three Department of Agriculture egg inspectors to issue false egg inspection certificates. They have issued a subpoena duces otecum to the United States Attorney for the production of certain papers at trial, and now seek pretrial discovery and inspection of the subpoenaed documents. The Government contends that, of the seven categories of documents set forth in the subpoena duces tecum, only the third is properly a subject of inspection and that there is no showing of good cause for pre-trial disclosure of the other documents sought by defendants. Rule 16 of the Federal Rules of Criminal Procedure provides that: “Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.” Rule 17(c) of the Federal Rules of Criminal Procedure also purports to give what is in effect a right of discovery. It authorizes the issuance as of right of a subpoena duces tecum for production of “the books, papers, documents or other objects designated therein” subject to quashing on a showing that “compliance would be unreasonable or oppressive.” The rule further provides that the court may direct production of the designated documents for inspection before trial. The right to pre-trial inspection under rule 16 is conditioned upon a" }, { "docid": "11419573", "title": "", "text": "taken by the second litigant in preparation for trial. It is well to take our bearings to discover the state of the law which faced the lower court when the motion to compel production of the Adams statement was made. (a) Discovery is governed, both in criminal and civil cases, by rules of practice promulgated by the Supreme Court under congressional authority. The power conferred on the Supreme Court by the statute was in these words: “The Supreme Court of the United States shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings prior to and including verdict, or finding of guilty or not guilty by the court * * * in criminal cases * * * in district courts of the United States * * *. Such rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session, and thereafter all laws -in conflict therewith shall be of no further force and effect.” Fed.Rules Crim.Proc. rule 16, 18 U.S.C.A. is the only one dealing with the subject and reads as follows: “Rule 16 Discovery and Inspection “Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. * * *” The Advisory Committee’s note under this rule states: “Whether under existing law discovery may be permitted in criminal cases is doubtful * * *. The entire matter is left within the discretion of the court.” [Emphasis added.] Since there is no evidence that the statement of Adams was obtained “by seizure or by process,” it" }, { "docid": "11419610", "title": "", "text": "judge when request was demanded by attorneys for appellant. If the statement did establish contradictions and variances, in the interest of justice the trial court should have required the Government to permit appellants’ counsel to inspect the same.” . Except where constitutional rights are claimed, the Government is entitled to exactly the same treatment as any other litigant. . By the Act of June 29, 1940, 54 Stat. 688, now 18 U.S.C.A. § 3771, the Supreme Court was empowered by Congress to pass rules governing practice in the District Courts, and it promulgated them on Dec. 26, 1944 and they became effective on March 21, 1946. The Court had appointed an Advisory Committee headed by the late Arthur T. Vanderbilt, then Chief Justice of the Supreme Court of New Jersey, to draft the rules, and the Committee contained lawyers of eminence and distinction. . Both Goldman and the co-conspirator were lawyers. . Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. . “Upon motion of any party showing good cause therefor and upon notice to all other parties * * * the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control * * . The more restricted scope of the Criminal Rule will be discussed infra. . Argued Nov. 13, 3946, decided Jan. 13, 1947. . Quoting from Odgers on Pleading and Practice 12 Edition, 1939, page 264, and referring to a compilation of English cases in 8 Wigmore on Evidence, 3rd Edition, 1940, pages 618-622. For a further discussion of the historical development of discovery and inspection, see, also, United States v. Bowman Dairy Co., 7 Cir., 1950, 185 F.2d 159. . See “A Criminal Case In The Federal Courts”" }, { "docid": "348649", "title": "", "text": "(1935) (per curiam), in which the petitioner had urged \"that the ‘knowing use’ by the State of perjured testimony to obtain the conviction and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law.” The Mooney Court’s holding, however, was limited on its face to the use of \"testimony known to be perjured.\" Id. at 112, 55 S.Ct. at 341. In Pyle the Supreme Court first held squarely that the deliberate suppression of favorable, non-perjured evidence violates due process. The fact that Pyle was not limited to the use of perjured testimony is occasionally overlooked. See United States v. Agurs, 427 U.S. 97, 103 n. 8, 96 S.Ct. 2392, 2397 n. 8, 49 L.Ed.2d 342 (1976). . The original Rule 16 provided: Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. The order shall specify the time, place and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just. 327 U.S. 821, 846 (1946). The Notes of the Advisory Committee explained: Whether under existing law discovery may be permitted in criminal cases is doubtful, United States v. Rosenfeld, 57 F.2d 74, C.C. A.2d, certiorari denied, 286 U.S. 556, 52 S.Ct. 642, 76 L.Ed. 1290. The courts have, however, made orders granting to the defendant an opportunity to inspect impounded documents belonging to him. United States v. B. Goedde and Co., 40 Fed.Supp. 523, 534, E.D. III. The rule is a restatement of this procedure. In addition, it permits the procedure to be invoked in cases of objects and documents obtained from others by seizure or by process, on the theory" }, { "docid": "11162775", "title": "", "text": "of written interrogatories to any adverse party. Rule 34 provides, upon a showing of good cause, for an order on any party to produce designated papers for inspection, copying or photographing. The scope of the examination allowed is set forth in Rule 26(b) and permits a party to be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. Discovery is one of the working tools of the legal profession, and good cause would appear to be shown where it is established that the records in question would be relevant to the issues joined in the proceeding and amount to evidence of probative value. The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pretrial functions of notice-giving, issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pretrial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. Regardless of the previous state of the law, it now appears certain that depositions and discovery rules are to be afforded a broad and liberal treatment." }, { "docid": "18261369", "title": "", "text": "METZNER, District Judge. The Government has moved under Rule 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., for an order directing that books, papers and documents designated in a subpoena duces tecum be produced for inspection by the Government prior to trial. Two indictments were filed against Ian Woodner, one charging evasion of income taxes for the year 1950 and the other charging evasion of income taxes for the years 1951, 1952 and 1953. The case has been marked ready for trial and has been adjourned until April 25, 1961, with the view toward setting a trial date on or about May 1st. Defendant opposes this motion on several grounds, the first, that the remedy provided by Rule 17(c) is not available to the Government. Such is not the law. The wording of Rule 17 (e) specifically states that “books, papers, documents or objects designated in the subpoena” may be produced in court at any time prior to the trial and that they may be inspected “by the parties or their attorneys.” This clearly indicates that the procedure is available to both the plaintiff and the defendant. This is in contradistinction to the provisions of Rule 16, which specifically limit discovery and inspection to the defendant. See also United States v. Gross, D.C.S.D.N.Y.1959, 24 F.R.D. 138,141; 4 Barron, Federal Practice and Procedure § 2044. The purpose of Rule 17(c) is to allow either party to inspect such documents “for the purpose of preventing delay during the trial, particularly in cases where numerous documents have been subpoenaed.” Notes of the Advisory Committee on the Federal Rules of Criminal Procedure, Preliminary Draft (1943), pp. 104-105, 107-108. Such is the case here, as indicated in the affidavit of Thomas O’Neil, defendant’s accountant, wherein he states that: “The huge volume of records and documents which exists, and the manner in which transactions were handled, bookkeeping and accounting wise, has made our assignment a more difficult, although not an insuperable one * * * ” While the Government admits that it has photostats and copies of some of the records, it does not" }, { "docid": "11419611", "title": "", "text": "upon notice to all other parties * * * the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control * * . The more restricted scope of the Criminal Rule will be discussed infra. . Argued Nov. 13, 3946, decided Jan. 13, 1947. . Quoting from Odgers on Pleading and Practice 12 Edition, 1939, page 264, and referring to a compilation of English cases in 8 Wigmore on Evidence, 3rd Edition, 1940, pages 618-622. For a further discussion of the historical development of discovery and inspection, see, also, United States v. Bowman Dairy Co., 7 Cir., 1950, 185 F.2d 159. . See “A Criminal Case In The Federal Courts” by Alexander Holtzoff, 1955 Federal Rules of Criminal Procedure (West), page 1. . “A Criminal Case In The Federal Courts,” by Alexander Holtzoff, West Publishing Company, 1955 Federal Rules of Criminal Procedure, at page 12. And the Supreme Court, in the Gordon case, infra at page 419, of 344 U.S., footnote 9, at page 373 of 73 S.Ct., noted that the discovery provisions of the Federal Rules of Civil Procedure were broader than those of the Federal Rules of Criminal Procedure. . Bowman Dairy Co. v. United States, 1951, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879, and Gordon v. United States, 1953, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447. . United States v. Bowman Dairy Co., 185 F.2d 159, 163: “Considering the history of Rule 16, which shows the evolution from the broad terms of its first draft to its final restrictive and limited terms, it is difficult to believe that the framers of the rule intended to authorize discovery and inspection of broad scope under Rule 17 (c) pertaining to" }, { "docid": "4901078", "title": "", "text": "sought may be material to the preparation of his defense and that the request is reasonable.” The following statement made by a member of the Supreme Court Advisory Committee at the Institute on the rule conducted by the New York University School of Law explains the purpose of this rule: He stated: “It often happens when a prosecution is begun by presenting a case to the grand jury that the government seizes books and papers and property and has them impounded so that it (sic) is within the exclusive jurisdiction and possession of the United States Attorney. It often happens, too, that the defendant needs to have access to some books, papers, and objects in order properly to prepare his defense, * * In the Preliminary Draft of the Federal Rules of Criminal Procedure, the rule (then Rule 19) with respect to discovery and inspection did not limit the discovery to designated books, etc., “obtained from or belonging to the defendant.” There the rule referred to “any” designated books, etc. In the second preliminary draft the rule referred to “designated books, etc., obtained from or belonging to the defendant or constituting evidence in the proceedings, * * The rule as finally adopted has been set out above. It is apparent the scope of the rule has been somewhat narrowed and the question to be decided here is whether any of the documents or records sought in the motion either were obtained from, or belonged to, the defendant, or were taken from others by seizure or by process. The defendant has failed to support the affirmative of any of these requisites with respect to the items set out above. If any statements were made by the defendant after his arrest, it is obvious these were not material taken from him or belonging to him and there is no evidence with respect to item 20 that the government has in its possession any property seized from others. However, the government does have in its possession recordings of broadcasts which it stated at the oral hearing on this motion were procured from the" }, { "docid": "15777315", "title": "", "text": "If he makes a voluntary statement and signs it, such statement may be considered to be, for purposes of the Rule, a statement that belonged to the defendant. Fairness would seem to indicate that defendant should be afforded an opportunity to obtain, prior to trial, a copy of his signed statement which he voluntarily had given the government agents after his arrest. In my opinion, the Court has power under Rule 16 to order the government to make available such a document for copying and inspection. The motion of the defendant is granted. Settle order. . “Rule 16.’ Discovery and Inspection “Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. The order shall specify the time, place and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just.” . Notes of the Advisory Committee on Rules of Criminal Procedure (1945), Note to Rule 16: “The entire matter is left within the discretion of the court.” See also Note, “The Scope of Criminal Discovery Against the Government”, 67 Harv.L.Rev. 492, 493 (1954). . See United States v. Carter, D.C.D.C. 1954, 15 F.R.D. 367. . United States v. Louie Gim Hall, D.C., 18 F.R.D. 384; United States v. Gogel, D.C., 19 F.R.D. 107; United States v. Kiamie, D.C., 18 F.R.D. 421. . D.C., 131 F.Supp. 807. . United States v. Leviton, 2 Cir., 1951, 193 F.2d 848, 853-855, certiorari denied, 1952, 343 U.S. 946, 72 S.Ct. 860, 96 L. Ed. 1350; United States v. Walker, 2 Cir., 1949, 176 F.2d 564, 567, certiorari denied, 1949, 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547; cf. United States v. Klapholz," }, { "docid": "12579471", "title": "", "text": "of detail in the pleading and the discovery rules are the answer. It has been said that the most effective machinery for reducing and clarifying the issues is a preliminary examination of the evidence of both parties, as broad in scope as the trial itself. Likewise, it should be noted that this reasoning applies with like force as to both plaintiff and defendant. •The discovery rules, Nos. 26 to 37, inclusive, set up a means of reducing and clarifying the issues and provide for a preliminary examination of the evidence of both parties, as broad in scope as the trial itself. Rule 26 provides for taking the testimony of any party or witness by oral examination or written interrogatories. Rule 33 provides for the issuance of written interrogatories to any adverse party. Rule 34 provides, upon a showing of good cause, for an order upon any party to produce designated papers for inspection, copying or photographing. The scope of the examination allowed is set forth in Rule 26(b) and permits a party to be examined regarding any matter not privileged, which is relevant to the subject matter involved in the pending action, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of the persons having knowledge of relevant facts. The pre-trial deposition discovery mechanism established by Rules 16, and 26 to 37, is indeed a significant innovation of the Federal Rules of Civil Procedure. Previous to the adoption of said new Rules inquiry into the issues and facts before trial was narrowly confined and often cumbersome and, as such, civil trials in the federal courts need no longer be carried on in the dark by either party to them. It is now possible and practicable, consistent with compliance to the 5 prerequisites heretofore enumerated, for either party to obtain the fullest possible knowledge of the issues and facts before trial; and mutual knowledge of all the relevant facts gathered by both parties is essential to' litigation; thus permitting either party to compel the other to disgorge whatever" }, { "docid": "21436909", "title": "", "text": "“The entire matter is left within the discretion of the court.” See United States v. Schiller, 2 Cir., 1951, 187 F.2d 572, 575. What a defendant may move to “inspect and copy or photograph” pursuant to Rule 16 is expressly limited to material “obtained from or belonging to the defendant or obtained from others by seizure or by process,” -and such inspection is conditioned ex vi termini “upon a showing that the items sought may be material to the preparation of * * * defense and that the request is reasonable.” What additional material may be subjected to a defendant’s inspection prior to trial depends upon proper interpretation of the last sentence of Rule 17(c): “The court may direct that, books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.” The sentence just quoted appeared in the preliminary draft of the rules as the last sentence of proposed Rule 20(b), and the appended note of the Advisory Committee explains: “The last sentence provides for a method by which the court may permit either side to inspect subpoenaed documents or objects under the supervision of the court. It is inserted in the interests, of fairness and for the purpose of preventing delay during the trial, particularly in cases where numerous documents may have been subpoenaed.” Federal Rules of Criminal Procedure — Preliminary Draft pp-. 104-105, 107-108 (1943). It seems clear then that whether materials subject to subpoena are to be produced and inspected prior to trial rests within the discretion of the trial court. Adopting a characterization from Mr. Chief Justice Marshall, defendants’ motion to- inspect is addressed “to the discretion of the court * , * * not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, C.C.Va., 1807," }, { "docid": "849427", "title": "", "text": "HOLTZOFF, District Judge. In this prosecution for alleged violátion of the Sherman law, 15 U.S.C.A. § 1 et seq., the defendants have applied for a subpoena duces tecum directing the Government to produce for the defendants’ inspection all documents which the Government has obtained from any person who is not a party to this proceeding. In other words, the defendants seek a broad discovery of all documentary evidence that the Government has obtained in support of its case, with the exception of such material as is covered by the recently coined and apt term of “work product” of a lawyer. Defendants seek to support their application by reference to Rule 17(c) of the Federal Rules of Criminal 'Procedure, 18 U.S.C.A. This rule relates to the issuance of subpoenas duces tecum and contains the following provision on which the defendants here rely: “The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence an<d may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.” The purpose of this provision is a limited one. It is to make it possible to require the production before the trial of documents subpoenaed for use at the trial. Its purpose is merely to shorten the trial. It is not intended as a discovery provision. In this case the proposed subpoena duces tecum is not intended to be used to secure evidence to be introduced at the trial, but is intended to be employed as a broad discovery for the purposes of inspecting all the documentary evidence in possession of the Government and which the Government intends to use at the trial. It is well settled that in a criminal case, unlike a civil action, such a right of broad discovery does not exist. As I said before, Rule 17(c) was not intended to be a discovery provision, but merely a means to make a" } ]

[ { "docid": "1894677", "title": "", "text": "factor number three, imposing the award will send a message to other plans that they cannot ignore ERISA’s procedural safeguards. The fourth factor applies to the instant case in two somewhat related respects. There is no controlling precedent in this circuit concerning the availability of attorney’s fees to parties who prevail on one ERISA-based procedural claim while a benefit claim remains undecided. Raising this legal issue presented the court with an opportunity to resolve this legal issue by emphasizing the importance of ERISA’s procedural safeguards and this benefits all participants and beneficiaries of the plan. As to the fifth factor, this court has previously determined that at least one important claim made by the plaintiffs has merit. In sum, application of the Quesinber-ry factors points persuasively to the conclusion that an attorney’s fees award is justified. Though ERISA gives the court discretion to award attorney’s fees, those fees must be reasonable. 29 U.S.C. § 1132(g)(1). Determining which fees Ms. Christian should be awarded based on her claim that the defendant failed to give her proper notice of a benefits denial is not simple. The Supreme Court has advised that “district courts should exercise their equitable discretion.. .to arrive at a reasonable fee award, either by attempting to identify specific hours that should be eliminated or by simply reducing the award to account for the limited success of the plaintiff.” Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Ms. Christian was not successful on both claims she brought before the court. She was successful only on the first count alleging that the defendant failed to provide proper notice of denial. She obtained a remand on the second count seeking a reversal of the plan’s decision not to award the requested benefits. Given the plaintiffs success in relation to the relief sought, the court finds that she achieved one-half of the requested relief. Accordingly, Ms. Christian is entitled to one-half of her attorney’s fees. See Perlman v. Swiss Bank Corp., 990 F.Supp. 1039 (N.D.Ill.1998) (finding that a plaintiff who was successful on only one of three" } ]

[ { "docid": "5574478", "title": "", "text": "reasonableness of Anderson’s fee request, which the parties stipulate is for $5,250. The parties do, however, disagree on whether ERISA authorizes Anderson to recover attorneys’ fees because her claims were resolved in administrative proceedings and never resulted in litigation. Specifically, P & G argues that Anderson did not require the services of an attorney to pursue her rights under the Plan, despite Anderson’s contention that she was forced to hire counsel because P & G failed adequately to inform her of her administrative rights following the Plan’s initial (oral) denial of Total Disability benefits. P & G further emphasizes that Anderson did not prevail on her claim that she was totally disabled as of November 17, 1996, and that she failed to appeal the Plan’s determination that she was eligible for Total Disability benefits only as of August 1997. Although this circuit has never ruled on the question whether ERISA permits an award of attorneys’ fees for legal services performed during the administrative stage of a benefits proceeding, the district court concluded, based on case law from other circuits, that the statute does not permit Anderson to recover fees. The district court thus granted P & G’s motion for summary judgment, citing 29 U.S.C. § 1132(g)(1), the ERISA provision governing fee awards. The sole issue on appeal is whether the district court has discretion under ERISA to award attorneys’ fees for legal services rendered during administrative proceedings for disability benefits. II This court reviews de novo the district court’s grant of summary judgment for Procter and Gamble. See Smith v. Ameri- tech, 129 F.3d 857, 863 (6th Cir.1997); Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 683, 136 L.Ed.2d 608 (1997). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1996). This court reviews for abuse" }, { "docid": "23029883", "title": "", "text": "we remand this case to the district court to determine the proper amount of benefits Shelby is entitled to for the hospital services it provided to Mason in accordance with the terms of the Plan. C. Attorney Fees Under 29 U.S.C. § 1132(g)(1), a “court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” A district court must consider the following factors in deciding whether to award attorney fees, (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. Schwartz v. Gregori, 160 F.3d 1116, 1119 (6th Cir.1998) (quoting Secretary of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985)), cert. denied, — U.S. —, 119 S.Ct. 1756, 143 L.Ed.2d 788 (1999). We review a district court’s award or denial of attorney fees for abuse of discretion. See id. The district court denied requests for attorney fees from the Fund and from Shelby. The Fund renews its request for attorney fees in its appeal of the district court’s judgment. Because we affirm the district court’s conclusion that the Board of Trustees’ interpretation of the Plan is unreasonable, the Fund is not entitled to attorney fees. Therefore, the district court did not abuse its discretion in refusing to grant attorney fees to the Fund. Shelby also challenges the district court’s denial of attorney fees and prejudgment interest claiming that the Fund acted in bad faith in denying its claim for benefits and unreasonably interpreted the provisions of the Plan to its detriment. We do not have jurisdiction to consider this argument because Shelby did not file a notice of cross-appeal. See Francis v. Clark Equip. Co., 993 F.2d 545, 552 (6th Cir.1993). III. CONCLUSION For the reasons stated above," }, { "docid": "1894676", "title": "", "text": "awarding fees under ERISA. Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1030 (4th Cir.1993). The district court must consider: (1) the degree of the opposing party’s culpability or bad faith; (2) the ability of the opposing party to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; (5) the relative merits of the parties’ positions. Id. As to the first factor, though this court does not find that the defendant acted in bad faith in failing to issue a notice of denial of benefits, in assessing the defendant’s culpability it is important to note that the plaintiff was unable to obtain the notice due her without first commencing suit. As to the second factor, the record indicates that the defendant has the ability to satisfy an award of fees. As to factor number three, imposing the award will send a message to other plans that they cannot ignore ERISA’s procedural safeguards. The fourth factor applies to the instant case in two somewhat related respects. There is no controlling precedent in this circuit concerning the availability of attorney’s fees to parties who prevail on one ERISA-based procedural claim while a benefit claim remains undecided. Raising this legal issue presented the court with an opportunity to resolve this legal issue by emphasizing the importance of ERISA’s procedural safeguards and this benefits all participants and beneficiaries of the plan. As to the fifth factor, this court has previously determined that at least one important claim made by the plaintiffs has merit. In sum, application of the Quesinber-ry factors points persuasively to the conclusion that an attorney’s fees award is justified. Though ERISA gives the court discretion to award attorney’s fees, those fees must be reasonable. 29 U.S.C. § 1132(g)(1). Determining which fees Ms. Christian should be awarded based on her claim that the defendant failed to give her proper" }, { "docid": "1894671", "title": "", "text": "MEMORANDUM OPINION MICHAEL, Senior District Judge. Background On March 18, 1996 Bettie Christian brought an action against Dupont-Waynes-boro Health Care Coverage Plan (the plan) charging a violation of the Employee Retirement Income Security Act (“ERISA”) for failure to issue a notice of denial of benefits that specified reasons for the denial of medical benefits as required by 29 U.S.C. § 1133 (Count I) and seeking a declaratory judgment under 29 U.S.C. § 1132 that medical treatment received by the plaintiff was medically necessary under the Plan (Count II). This court found that the notice of denial of benefits sent from the Plan Administrator to plaintiff was insufficient as a matter of law because it failed to meet the requirements of 29 U.S.C. § 1133 that the Plan “provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has’ been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant.” The court then remanded the matter to the Plan Administrator to correct the procedural deficiencies in the notice of denial of benefits and address the plaintiff’s request for benefits. The plaintiff is currently before the court seeking attorney’s fees and costs under 29 U.S.C. § 1132(g). The court has considered carefully the file, the pleadings, and the law. It has conducted a de novo review of the analysis and conclusions of the magistrate judge. Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir.1982). For the reasons set out below, the court adopts the report and recommendation of the magistrate judge with respect to his recommendation to award attorney’s fees and costs. Discussion ERISA gives the district court discretion to award reasonable attorney’s fees and costs. 29 U.S.C. § 1182(g)(1); Custer v. Pan American Life Insurance Company, 12 F.3d 410 (4th Cir.1993) (“An award of attorney’s fees under ERISA is discretionary, and our review of the district court’s exercise of discretion is limited to determining whether it abused its discretion.”). To recover fees and costs, Ms. Christian must first establish that she is the “prevailing" }, { "docid": "23064430", "title": "", "text": "PER CURIAM. Joan Lawrence brought an action for declaratory judgment against the Board of Administrators of the Lincoln St. Louis Pension Plan For Certain Hourly Employees contending that the administrators had wrongfully denied her request for disability benefits under the Plan. In a bench trial, the district court declined to award benefits, but remanded the case to the fiduciary to consider additional evidence. Lawrence thereafter moved for an award of attorneys’ fees under 29 U.S.C. § 1132(g) (1982) which authorizes a court, in its discretion, to award reasonable attorneys’ fees and costs to either party in ERISA actions. The district court denied the motion and Lawrence appeals. We remand. The decision whether to award attorneys’ fees under ERISA is discretionary, not mandatory. See Fase v. Seafarers Welfare and Pension Plan, 589 F.2d 112, 116 (2d Cir.1978). In exercising that discretion, a court should consider the following factors: (1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys’ fees; (3) whether an award of attorneys’ fees against the opposing parties could deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal qeustion [sic] regarding ERISA itself; and (5) the relative merits of the parties’ positions. Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir.1980). In addition, a court may properly deny a claim for attorneys’ fees solely on the ground that the plaintiff obtained no relief under the statute. See Fase, 589 F.2d at 116. In this case we believe that the denial of attorneys’ fees may have been premature because the plaintiff may still succeed on the merits of her action, either in the administrative proceedings or otherwise. Accordingly, while agreeing that the district court properly denied the request for fees at this time, we direct that the district court modify its order to permit plaintiff to reapply for fees should she ultimately succeed in her claim for disability benefits. Affirmed," }, { "docid": "3778944", "title": "", "text": "Therefore, we affirm the district court’s dismissal of Dytrt’s state law claim as preempted by ERISA. G. ERISA § 502—Attorneys’ Fees Dytrt last challenges the district court’s awarding of $4,289.45 in attorneys’ fees (10% of the amount requested) to Mountain Bell under ERISA § 502(g)(1). ERISA § 502 provides in part: (g)(1) In any action under this title ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party. ERISA § 502(g)(1), 29 U.S.C. § 1132(g)(1). This court has set forth the following factors to consider in awarding attorneys’ fees under ERISA: 1) The culpability or good faith of the opposing party; 2) the ability of the opposing party to pay the fee award; 3) the degree of deterrence which would result from an award of fees; 4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant ERISA legal question; 5) the relative merits of the parties’ position. Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980). The district court held that factors three and five favored Mountain Bell and were the basis for its award. Under factor five, the court ruled that Dytrt had made “no showing that under any standard, [she] would be entitled to prevail on her claims of ERISA violations.” Although we affirm the district court’s dismissal of Dytrt’s state law claim, because we reverse the district court’s grant of summary judgment on the § 404 ERISA claim, we must vacate the district court’s award of attorney’s fees to Mountain Bell, and remand the issue of attorney’s fees to the district court. Each party shall bear their own costs on appeal. REVERSED IN PART, AFFIRMED IN PART, VACATED IN PART, AND REMANDED. . Over one thousand managers elected to take early retirement under the Plan. . Mountain Bell also relies upon the legend on the response form signed by Dytrt clearly indicating that the decision was irrevocable. See supra at 892. However, the Plan description provided that" }, { "docid": "22473736", "title": "", "text": "Custer fell .short of establishing a viable claim under 29 U.S.C. § 1140 and failed to establish any right to continuation of coverage after her employer canceled. Claims for health benefits under plans are made constantly, and decisions must be made as to which should be paid and which should be denied. An employer who is unhappy with the coverage provided by an insurer may cancel, and a participant or beneficiary who disagrees with the decision on a claim may bring an action under 29 U.S.C. § 1132(a)(1), seeking past benefits and clarification of future rights. A plaintiff must, however, show more than the mere denial of a claim to establish that an insurer has acted with the intent of interfering with a future right under 29 U.S.C. § 1140. We thus firid no error in the district court’s entry of summary judgment on the merits in favor of the defendants. y Finally, Custer contends that the district court erred in refusing to award her attorney’s fees under 29 U.S.C. § 1132(g)(1) which provides, “In any action under this title ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” Because it ruled against Custer on all contested matters, the district court refused to award attorney’s fees. Custer argues, however, that because the defendants did not admit liability for benefits payable to Marc Custer until after she filed suit, she should be treated as a prevailing party and is therefore entitled to attorney’s 'fees. An award of attorney’s fees under ERISA is discretionary, and our review of the district court’s exercise of discretion is limited to determining whether it abused its discretion. Turning to the applicable criteria for awarding a fee in an ERISA action, we have held that a party who prevails does not, by prevailing alone, establish a presumption of entitlement to an award of fees. See Quesinberry v. Life Insurance Company of North America, 987 F.2d 1017, 1028-29 (4th Cir.1993) (en banc). In Quesinberry we expressly rejected the notion, prevalent in civil" }, { "docid": "7918692", "title": "", "text": "to deny coverage they should not be liable for the plaintiffs attorney’s fees. Defendant further argues that the only way for the plaintiff to be awarded attorney’s fees is if the defendant’s position was determined by the court to be unjustified, or merely an attempt to harass or vex the plaintiff. Neither side addressed the issue, nor did the District Court rule, whether the settlement bestowed “prevailing party” status on the plaintiff under ERISA § 502(g)(1). II. ISSUE The issue for review is whether the district court abused its discretion when it denied plaintiffs petition for attorney’s fees because it found that the defendant’s position was substantially justified. We, however, recognize that prior to determining if the defendant’s position was substantially justified, we must determine whether the plaintiff is truly a prevailing party in light of the settlement in this case. III. DISCUSSION Hooper’s suit was brought pursuant to the Employee Retirement Income Security Act of 1974, which provided the district court with exclusive jurisdiction pursuant to 29 U.S.C. § 1132(e)(2). We note that the primary purpose of ERISA, to protect the participants in employee benefit plans, is achieved by “establishing standards of conduct, responsibility, and obligations for fiduciaries of employment benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the federal courts.” ERISA § 2(b), 29 U.S.C. § 1001(b). To encourage aggrieved parties to seek redress under ERISA, the statute gives the trial court discretion to award attorney’s fees to a prevailing party. Under ERISA § 502(g)(1), 29 U.S.C. § 1132(g)(1), “[i]n any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” Prevailing Party Status Plaintiff claims the district court committed an abuse of discretion when it failed to properly evaluate the five criteria normally used to determine whether an award of an attorney’s fees is warranted under ERISA. These five factors known as the multi-factor test, are: “(1) the degree of the offending parties’ culpability or bad faith; (2) the degree of the ability" }, { "docid": "23186259", "title": "", "text": "will occur). Because the Plan did not make payment nor participate in the action against the third party, and because Barnes has not been made whole, she is entitled to recover her medical expenses. III. Attorney’s fees Barnes asks for her attorney’s fees pursuant to 29 U.S.C. § 1132(g)(1), which permits an award of “a reasonable attorney’s fee and costs of action to either party” in an action “by a participant, beneficiary or fiduciary.” In deciding whether to exercise our discretion to award fees, we consider 1) the degree of the opposing party’s culpability or bad faith; 2) the ability of the opposing party to satisfy an award of fees; 3) whether an award of fees against the opposing party would deter others from acting under similar circumstances; 4) whether the party requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and 5) the relative legal merits of the parties’ positions. Kim v. Fujikawa, 871 F.2d 1427, 1435 (9th Cir.1989); Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980). A plan participant who prevails in an action to enforce rights under the plan is ordinarily entitled to a reasonable attorney’s fee if the participant “succeed[s] on any significant issue in litigation which achieves some of the benefit ... sought in bringing suit” and if no special circumstances make an award unjust. Losada v. Golden Gate Disposal Co., 950 F.2d 1395, 1401 (9th Cir.1991) (citations and quotations omitted). Several of the above factors weigh in Barnes’ favor. The Plan does not dispute that it can satisfy a fee award; Barnes’ action sought to resolve an important legal question regarding the interpretation of sub-rogation clauses in ERISA plans; and Barnes’ position has the greater merit. We therefore exercise our discretion to award Barnes her attorney’s fees on appeal. Barnes also requested fees in the district court action. The district court did not address the fee request in awarding summary judgment to the Plan. On remand, the district court should consider whether to exercise its discretion to" }, { "docid": "16974027", "title": "", "text": "MEMORANDUM OPINION BRINKEMA, District Judge. Before the Court is plaintiffs Motion for Attorneys’ Fees in which she requests an award of $33,079.00 in attorneys’ fees incurred during defendant’s unsuccessful appeal of our decision granting summary judgment in plaintiffs favor. For the following reasons, we find that plaintiff is entitled to an award of $27,854.00. Plaintiff Joan Cox brought this action under the Employment Retirement Income Security Act (“ERISA”) to recover life insurance benefits under her husband’s employee benefits plan, after he was accidentally shot to death in their home by police officers. Initially, defendant denied plaintiffs claim on the grounds that the decedent, Brian Cox, was committing a felony when the police shot him. After appealing that denial administratively, plaintiff filed this civil action. On October 5, 2001, we entered summary judgment in plaintiffs favor in the amount of $250,000.00, the full value of Brian Cox’s life insurance policy benefit. On November 16, 2001, in response to her motion, we also awarded plaintiff $50,245.45 in attorneys’ fees. Defendant appealed both of these rulings to the Court of Appeals for the Fourth Circuit, which affirmed both rulings in an unpublished opinion. Cox v. Reliance Standard Life Ins. Co., 2002 WL 1837945 (4th Cir. Aug.13, 2002). On August 26, 2002, plaintiff filed a Motion for Attorneys’ Fees with the Court of Appeals requesting an award of attorneys’ fees in connection with the appeal. After receiving an opposition from the defendant, the Court of Appeals remanded the issue to this Court for decision. Under ERISA, a district court has discretion to award reasonable attorneys’ fees and costs to the prevailing party. 29 U.S.C. § 1132(g). In determining whether to award attorneys’ fees, a court should consider five factors, which include any bad faith by the opposing party, the ability of the opposing party to satisfy an award of fees, whether an award of fees would act as a deterrent, whether the action resolves a significant legal question regarding ERISA itself, and the relative merits of both parties’ positions. Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1030 (4th Cir.1993); Reinking" }, { "docid": "15235995", "title": "", "text": "not an “employer” as defined by that statute. In fact, the district court found that that is why she withdrew her charge from the EEOC. The OCRC’s report further informed Gettings that she could not merge the workforces of the Union and the Fund in order to meet Title VII’s jurisdictional requirements. Gettings thus had every reason to believe that her Title VII claim was barred, yet she pursued it anyway. She also failed to articulate any cognizable ERISA claim, as is evident from the conflicting interpretations by the district court and the Fund regarding the exact nature of Gettings’s ERISA allegations. Under ERISA, a district court “may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). This court has held that when a district court exercises its discretion in awarding attorney fees under ERISA, it should consider five factors: (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. Foltice v. Guardsman Products, Inc., 98 F.3d 933, 936-37 (6th Cir.1996) (internal citation omitted). The district court should explicitly consider all of these factors on remand. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the decision of the district court granting summary judgment for the Fund. In addition, we VACATE the district court’s denial of attorney fees to the Fund and REMAND with instructions that the court reconsider the request and provide a reasoned explanation for its decision." }, { "docid": "17969518", "title": "", "text": "post-traumatic stress disorder as non-primary impairments means that the SSA benefits were payable for the same disability. Accordingly, the ambiguity must be resolved in favor of Plaintiff, see Glocker at 544, and Defendant will be ordered to pay Plaintiff the $3,051.84 withheld by UNUM in September, 1996. The Court also has discretion to award prejudgment interest on that amount, which will be granted at the rate of 6%. See, Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1030-31 (4th Cir.1993) (ERISA permits award of prejudgment interest in the district court’s discretion); E.E.O.C. v. Liggett & Myers, Inc., 690 F.2d 1072, 1074 (4th Cir.1982) (rate of interest within the court’s discretion); Federal Savings and Loan Insurance Corp. v. Quality Inns, Inc., 876 F.2d 353, 359 (4th Cir.1989) (observing that Maryland’s legal rate of prejudgment interest is 6%). D. Attorney’s Fees Plaintiff has requested that the Court award her attorney’s fees, along with other relief. ERISA gives federal district courts discretion to award reasonable attorney’s fees and costs. 29 U.S.C. § 1132(g). In order to recover fees, Plaintiff would need to demonstrate that she was the prevailing party. See, Martin v. Blue Cross & Blue Shield, 115 F.3d 1201, 1210 (4th Cir.1997); Quesinberry, 987 F.2d at 1028. This Court has determined that Plaintiff should prevail only as to her claim for benefits withheld by UNUM for alleged overpayment, a claim which contains some degree of ambiguity and which amounts to a small fraction of the relief Plaintiff requested. Plaintiff has not prevailed on the majority of her claims, how ever, and the Court will not exercise its discretion to award attorney’s fees in this matter. IV. CONCLUSION For the foregoing reasons, Defendant’s Motion for Summary Judgment will be granted as to Counts II and III, and as to the claim in Count I regarding the classification of Plaintiffs disability. Defendant’s motion will be denied as to Defendant’s counterclaim, and as to the claim in Count I regarding Plaintiffs claim for benefits withheld by UNUM for' alleged overpayment. Plaintiffs Motion for Summary Judgment will be granted as to the claim" }, { "docid": "22246432", "title": "", "text": "motion addressed the merits of her claims (indeed, as a result of the reconsideration she prevailed on her claim for the return of premiums). In this case, the request for attorney’s fees, denied in the original Judgment, was presented as another aspect of the postjudgment motion and as part and parcel of it. The district court ruled on the motion in its entirety in its postjudgment order entered on January 13, 1999. Accordingly, the parties’ time to appeal from the judgment began at that time. Jones’s notice of appeal, filed 27 days later on February 9, 1999, was therefore timely filed. B. The Merits Jones principally pursues her contentions that she should be awarded attorney’s fees and a higher rate of prejudgment interest in connection with her recovery of disability benefits. She contends that such relief is necessary to make her whole and that the district court could not properly deny those awards without an explanation. Although we affirm other aspects of the Judgment, see Part II.B.3. below, we remand for findings on these issues in order to permit meaningful appellate review. 1. Attorney’s Fees In an action by a plan beneficiary to enforce a right under ERISA, the district court “in its discretion,” except in circumstances not applicable here, “may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1); see Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir.1995). In determining whether to make such an award, the court is ordinarily to consider “five factors: (1) the degree of the offending party’s culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney’s fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties’ positions, and (5) whether the action conferred a common benefit on a group of pension plan participants.” Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir.1987), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990). We review a district" }, { "docid": "22081666", "title": "", "text": "and detrimental reliance. The second claim requests a declaratory judgment that the arbitration clause violates ERISA because the clause requires the beneficiary to pay one-half of the costs of the arbitration, imposes a contractual 60-day statute of limitations, and does not provide for attorneys’ fees. By contrast, the private right of action under ERISA does not require the sharing of costs, allows a four-year statute of limitations for an action to recover benefits under a written contract, see Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program, 222 F.3d 643 (9th Cir.2000) (en banc), and provides attorneys’ fees to a prevailing plaintiff, see 29 U.S.C. § 1132(g)(1). The district court dismissed Chappel’s second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). It held that Chappel’s first claim is barred by the Plan’s mandatory arbitration clause. It also held the arbitration clause valid and enforceable, despite the fact that the rights it confers are less advantageous than those conferred by the private cause of action otherwise available under ERISA. Finally, the district court denied Chappel leave to amend his complaint to state a claim against the plan administrator for breach of fiduciary duty in failing to notify him in a timely fashion of his right to pursue arbitration. Chappel appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part. II Whether a complaint states a claim is a question of law reviewed de novo. See Arnett v. California Pub. Employees Retirement Sys., 179 F.3d 690, 694 (9th Cir.1999). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999). Section 502 of ERISA entitles a participant or beneficiary of an ERISA-regulated plan to bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the" }, { "docid": "1894675", "title": "", "text": "the defendant’s approach would produce an anomalous result. Those litigants who bring two separate actions — one under ERISA’s procedural provisions and a second to obtain benefits— would be eligible, if they prevailed, to collect fees at the conclusion of each suit. Conversely, those litigants who consolidate their procedural and substantive claims would risk having to wait what would often be a considerable period of time before becoming eligible to collect fees. Ms. Christian was compelled to bring suit against the defendant in order to obtain a detailed notice of denial as required by 29 U.S.C. § 1133. Denial of this important procedural safeguard presented a significant issue and Ms. Christian’s success achieved some of the benefit sought in bringing suit. The fact that this court remanded the plaintiffs request for benefits does not prohibit her status as a “prevailing party.” Having determined that Ms. Christian is a “prevailing party,” this court must now consider whether to grant Ms. Christian’s request for attorney’s fees and costs. The Fourth Circuit has established a five-factor test for awarding fees under ERISA. Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1030 (4th Cir.1993). The district court must consider: (1) the degree of the opposing party’s culpability or bad faith; (2) the ability of the opposing party to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; (5) the relative merits of the parties’ positions. Id. As to the first factor, though this court does not find that the defendant acted in bad faith in failing to issue a notice of denial of benefits, in assessing the defendant’s culpability it is important to note that the plaintiff was unable to obtain the notice due her without first commencing suit. As to the second factor, the record indicates that the defendant has the ability to satisfy an award of fees. As to" }, { "docid": "1894672", "title": "", "text": "Administrator to correct the procedural deficiencies in the notice of denial of benefits and address the plaintiff’s request for benefits. The plaintiff is currently before the court seeking attorney’s fees and costs under 29 U.S.C. § 1132(g). The court has considered carefully the file, the pleadings, and the law. It has conducted a de novo review of the analysis and conclusions of the magistrate judge. Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir.1982). For the reasons set out below, the court adopts the report and recommendation of the magistrate judge with respect to his recommendation to award attorney’s fees and costs. Discussion ERISA gives the district court discretion to award reasonable attorney’s fees and costs. 29 U.S.C. § 1182(g)(1); Custer v. Pan American Life Insurance Company, 12 F.3d 410 (4th Cir.1993) (“An award of attorney’s fees under ERISA is discretionary, and our review of the district court’s exercise of discretion is limited to determining whether it abused its discretion.”). To recover fees and costs, Ms. Christian must first establish that she is the “prevailing party” in this litigation. Martin v. Blue Cross & Blue Shield of Va., 115 F.3d 1201, 1210 (4th Cir.1997). The rule that only a “prevailing party” may obtain attorney’s fees in an ERISA action is a relatively new approach in this circuit. The Fourth Circuit has not yet had occasion to consider what constitutes a “prevailing party” where a litigant brings multiple claims and is successful on one, but not on the other(s). The defendant argues that Ms. Christian can only be a “prevailing party” if she had prevailed on both of her claims and that because Ms. Christian’s claims for benefits has yet to be resolved, it is premature to award attorney’s fees. The plan’s argument is premised on the assertion that the primary goal of Ms. Christian’s claim was to obtain the requested benefits. This approach ignores the important role that procedural protections play in ERISA’s effectiveness. Without a specific letter detailing the plan’s reasons for denying coverage, Ms. Christian cannot know what protections may be afforded by ERISA nor can she know" }, { "docid": "17095023", "title": "", "text": "her amended complaint. Consequently, defendants’ corresponding motion is granted. E. Attorney’s Fees Lastly, Mrs. Cultrona seeks attorney’s fees. In an ERISA action brought by a participant or beneficiary, “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). When exercising this discretion, the Court considers the following five factors: (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether -the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. Sec’y of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985). The King factors “represent a flexible approach; none of them is necessarily dispositive.” Foltice v. Guardsman Prods., Inc., 98 F.3d 933, 937 (6th Cir.1996) (internal quotation omitted). A fee claimant need not be a “prevailing party” to be eligible for an award of attorney’s fees under § 1132(g)(1), but must achieve “some success on the merits.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 130 S.Ct. 2149, 2159, 176 L.Ed.2d 998 (2010). Other than one reference to an “approximate” total, Mrs. Cultrona has submitted no information regarding the amount or the calculation of her attorney’s fees. Moreover, Mrs. Cultrona’s, motion for fees is premature, and is therefore denied without prejudice to renewal. See Fed. R.Civ.P. 54(d)(2). III. CONCLUSION For the foregoing reasons, plaintiff Nicole Cultrona’s motion for judgment on the administrative record is GRANTED IN PART AND DENIED IN PART with respect to Count I of her amended complaint, and the BAC is assessed a statutory penalty of $8,910. Mrs. Cultrona’s .motion is DENIED with respect to Counts II, III, and IV,,and her motion for attorney’s fees is DENIED WITHOUT PREJUDICE as premature. Additionally, defendants’ motion for judgment on the administrative record is GRANTED IN PART AND DENIED IN PART with" }, { "docid": "9884581", "title": "", "text": "accident. Defendant asserted the “non-accident” rationale had always been a reason for the denial of benefits to Mrs. Cox. We rejected that claim as incredible, based on the record of defendant’s denial letters and the deposition testimony of the Reliance claim administrator that the felony exclusion was the sole reason Mrs. Cox was denied benefits. On October 5, 2001, Summary Judgment was entered in favor of plaintiff. Defendants filed a Notice of Appeal on October 25, 2001. DISCUSSION Under ERISA, the court has discretion to award reasonable attorney’s fees and costs to the prevailing party. 29 U.S.C. § 1132(g). In determining whether or not to award attorneys’ fees, a court should consider the degree of opposing party’s culpability or bad faith; the ability of the opposing party to satisfy an award of attorneys’ fees; whether an award of attorneys’ fees would deter other persons acting under similar circumstances; whether the party requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and the relative merits of the parties’ positions. Quesinberry v. Life Ins. Co. Of N. Am., 987 F.2d 1017, 1030 (4th Cir.1993); Reinking v. Philadelphia American Life Ins. Co., 910 F.2d 1210 (4th Cir.1990). None of these factors is decisive; however they constitute the nucleus of the inquiry. Custer v. Pan American Life Ins. Co., 12 F.3d 410, 422 (4th Cir.1993). Plaintiff argues that Reliance acted in bad faith from its initial denial of benefits until the present. In particular, plaintiff claims that Reliance acted in bad faith when it failed to investigate adequately plaintiffs claim, and sought out, but then unreasonably rejected, the Commonwealth’s Attorney’s conclusion that it would be impossible to determine whether or not Mr. Cox was committing a felony at the time of his death. Plaintiff also contends that defendant’s improper interpretation of the mens rea element requirement of the Virginia Criminal Code amounted to a lack of good faith. In response, defendant reargues its positions that the felony exclusion was applicable and that plaintiff failed to meet her burden of" }, { "docid": "5566670", "title": "", "text": "failed to comply with ERISA’s procedural requirements regarding claim denials and the provision of a “full and fair” review. But see Groves v. Modified Retirement Plan for Hourly Paid Employees of Johns Man-ville Corp. & Subsidiaries, 803 F.2d 109 (3d Cir.1986) (penalties against the administrator not available for violations of § 1133 and 29 C.F.R. § 2560.503-l(f)). These failures resulted in a lengthy court action. It was not until plaintiffs had hired an attorney and filed suit that the administrator even attempted to fully articulate its reasons for denial. Even then, the administrator ignored a request for information, or willfully refused to provide information it is obligated to provide under ERISA’s terms. The court cannot allow these deficiencies to go unredressed. Therefore, we believe a penalty should be assessed in the amount of $50.00 per day from December 28, 1989, to present. Thus, penalties in the total amount of $15,775.00 will be assessed. Plaintiff’s request an award of attorney’s fees pursuant to 29 U.S.C. § 1132(g)(1). Section 1132(g)(1) provides that “[i]n any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). The courts have almost uniformly adopted the following five factors that should be considered in determining whether to award fees: (1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorney’s fees; (3) whether an award of attorney’s fees would deter other persons acting under similar circumstances; (4) whether the parties requesting attorney’s fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parts’ position. Nachwalter v. Christie, 805 F.2d 956, 961-62 (11th Cir.1986); Lawrence v. Westerhaus, 749 F.2d 494, 495 (8th Cir.1984). Additionally, a claim may be denied solely because plaintiff obtained no relief under the statute. Lawrence, 749 F.2d at 496. In light of the court’s assessment of penal ties, we" }, { "docid": "13697530", "title": "", "text": "the district court found that Free man’s disability was caused by a. bodily injury and resulted directly from the accident and independently of all other causes.. These findings are not clearly erroneous. The record contains substantial evidence supporting the factual determinations made by the district court as to both the injury and its cause. B. Denial of Freeman’s Motion for' Attorney’s Fees Freeman claims that the district court erred in denying his motion for attorney’s fees under 29 U.S.C. § 1132(g)(1). We find no abuse of discretion in the court’s denial of fees. The applicable statute provides: In any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party. 29 U.S.C. § 1132(g)(1). Unlike other fee-shifting provisions, which give the court discretion to award fees to a prevailing party, § 1132(g)(1) allows a court to award fees to either party. Dixon, 878 F.2d at 1412. The law provides no presumption in favor of granting attorney’s fees to a prevailing claimant in an ERISA action. Id. Our cases have enumerated five factors for the district court to consider when deciding a motion for attorney’s fees: (1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorney’s fees; (3) whether an award of attorney’s fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties 'requesting attorney’s fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; (5) the relative merits of the parties’ positions. McKnight v. Southern Life And Health Ins. Co., 758 F.2d 1566 (11th Cir.1985) (citing Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th Cir.1980)). We have recognized that “[no] one of these factors is necessarily decisive, and some may not be apropos in a given case, but together they are the nuclei of concerns that a court should address.... In particular types of cases, or" } ]

[ { "docid": "22661017", "title": "", "text": "the scope of the Commissioner’s power is called in question. III. Reading the statutes as we do, the Commissioner need not meet any standard of probable cause to obtain enforcement of his summons, either before or after the three-year statute of limitations on ordinary tax Labil-ities has expired. He must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner’s possession, and that the administrative steps required by the Code have been followed-j-in particular, that the “Secretary or his delegate,” after investigation, has determined the further examination to be necessary and has notified the taxpayer in writing to that effect. This does not make meaningless the adversary hearing to which the taxpayer is entitled before enforcement is ordered. At the hearing he “may challenge the summons on any appropriate ground,” Reisman v. Caplin, 375 U. S. 440, at 449. Nor does our reading of the statutes mean that under no circumstances may the court inquire into the underlying reasons for the examination. It is the court’s process which is invoked to enforce the administrative summons and a court may not permit its process to be abused. Such an abuse would take place if the summons had been issued for an improper purpose, such, as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation. The burden of showing an abuse, of the court’s process is on the taxpayer, and it is not met by a mere showing, as was made in this case, that the statute of limitations for ordinary deficiencies has run or that the records in question have already been once examined. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. I. R. C., §6501 (a). I. R. C., § 6501 (c) (1), which in relevant part provides: “In the case of" } ]

[ { "docid": "9944369", "title": "", "text": "at the administrative level does not obligate petitioner to do the same for general or special orders. Indeed, this case does not present a situation in which further administrative review might be helpful. Despite respondent’s protestations, there do not appear to be any issues of fact which could have been clarified at the administrative level. Petitioner has found Firestone’s responses to the special order to be almost totally deficient, and the record reflects that Firestone has provided little or no information to NHTSA in response to this order. To argue, therefore, that a hearing at the administrative level might narrow the issues is at best disingenuous. In addition, the issue of burdensomeness, which may be properly raised during an enforcement proceeding of this type, does not appear to be the type of issue which would require extensive administrative factfinding. In a summary enforcement proceeding, if the court finds, upon application of the relevant legal standards, that the subpoena or special order is enforceable, the court may not at that point modify the subpoena due to other considerations nor investigate issues in collateral areas. F. T. C. v. Texaco, Inc., supra, 180 U.S.App.D.C. at 407, 555 F.2d at 879; F. T. C. v. Anderson, 442 F.Supp. 1118, 1122 (D.D. C.1977). It does not appear that NHTSA is under an obligation in this case to provide the type of additional administrative procedure requested by respondent. This court therefore must reject respondent’s motion to dismiss or in the alternative to transfer in full, and the court may proceed to the merits of this enforcement proceeding. II. Petition to Enforce Special Order. NHTSA’s special order consists of 27 interrogatories, and originally provided a 15- day response period to April 27, 1978. This was later extended to May 4,1978. On that date, Firestone submitted a partial response to the special order. Firestone objected to eight interrogatories but indicated that without waiving its objections, it would provide partial responses to the interrogatories. For one question (# 27) an incomplete answer was given with no promise to augment. For another (# 6), Firestone said it would answer" }, { "docid": "9944360", "title": "", "text": "subpoena or a special order is summary in nature, and except in the most extraordinary circumstances, discovery and testimony are not allowed. F. T. C. v. Texaco, Inc., 180 U.S.App.D.C. 390, 399-400, 555 F.2d 862, 871-72 (en banc), cert. denied 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). The burdens imposed by such a summary proceeding are clearly less onerous than those accompanying an ordinary civil action. F. T. C. v. Cockrell, supra, 431 F.Supp. at 560. Concomitantly, the importance of factors of convenience are reduced when the suit to be transferred is a summary enforcement proceeding. See id. This is especially true when the party claiming inconvenience is a corporation of the size and resources of respondent here. See General Electric Co. v. F. T. G, 411 F.Supp. 1004, 1011-12 (N.D.N.Y.1976). Firestone is only negligibly inconvenienced by the presence of the enforcement action in this district. Further, it is not readily apparent that the interests of convenience would be served even if this matter were transferred to the Northern District of Ohio. Specifically, it appears that Firestone does not have ready access to much of the information requested by NHTSA, but must gather this information from around the country. Such activity would not be made any more convenient if this case were to be transferred. Therefore, considerations of convenience fail to justify transfer of this matter. As for the argument that transferring this case would be in the interest of justice, where venue in the original forum is proper', the moving party bears a heavy burden in attempting to disrupt petitioner’s choice of forum, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), although the court’s discretion to grant transfers is somewhat broader under the Judicial Code than at common law. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955). The case now pending before the Northern District of Ohio is a suit to review the agency action in releasing a survey in October, 1977 which Firestone alleges distorts the performance of its" }, { "docid": "9944377", "title": "", "text": "these newly-granted investigatory powers. As such, the court must read the requirements of this Act within the context of Congressional intent. The Secretary’s investigative power is broad enough to compel the production of documents and the analysis thereof. Indeed, section 1401(c) allows the Secretary to require the preparation of reports by “any person ... in such form as the Secretary may prescribe . . . .” It is clear, therefore, that the Secretary may require Firestone to analyze certain information Firestone has collected. To state that the Secretary may then be prevented from receiving the documents underlying such reports would be contrary to reason and to the intent of Congress. Thus, the court finds that NHTSA has issued the special order in question in accordance with the required administrative procedures. C. Relevance — NHTSA’s alleged Failure to Specify Which Responses are Deficient. The Circuit Court in F. T. C. v. Texaco, Inc., supra, stated that it is suffi cient to find that the material sought by administrative subpoena is “reasonably relevant” to a legitimate investigatory purpose. 180 U.S.App.D.C. at 402, 555 F.2d at 874 n. 23. Firestone has not specifically raised an objection on the basis of relevancy in this case. However, Firestone has used relevancy-type arguments in alleging that since NHTSA has failed to designate specifically which of the interrogatories were not answered, then the entire motion before the court is overbroad and should be denied. First of all, a reading of the memorandum submitted by petitioner in this case reveals that the government contends that the answers to all of the interrogatories were deficient. Petitioner seeks further information in response to all of the questions asked. Secondly, however, to address Firestone’s complaint of overbreadth in the scope of the questions and in the scope of this petition, the Circuit Court in F. T. C. v. Texaco, Inc., supra, recognized that administrative investigatory subpoenas must by their very nature be broad. The agency need not narrow its focus from the beginning, and it is not for this court to determine whether the information sought is relevant to whatever eventual" }, { "docid": "9944374", "title": "", "text": "special order requiring the production of information. It is true that Section 1401(c) speaks only in terms of what the Secretary may do, and not in terms of what the Secretary or his delegates may do. It is also true that other sections of the Act make it clear that delegation is possible, while this section does not. However, the legislative history does not support Firestone’s reading of this section. The House Interstate and Foreign Commerce Committee, in reporting on the 1974 amendments to the National Traffic and Motor Vehicle Safety Act which increased the enforcement and investigative powers of the Secretary under the Act, indicated that special orders could be issued by the Secretary to gather information in support of his investigations. The Committee further noted that federal district courts would have jurisdiction to enforce “a subpoena or order of the Secretary or his officer or employee.” H.Rep.93-1191, 93d Cong., 2d Sess., as reprinted in [1974] U.S. Code Cong. & Admin.News pp. 6046, 6071. It is clear that Congress recognized that the special and general orders provided for in section 1401(c)(3) would be issued not solely by the Secretary, but also by one of his officers. Indeed, it would be contrary to reason to expect that the Secretary himself would directly supervise the beginning phases of each and every investigation undertaken pursuant to the Act. Therefore, Firestone’s first contention as to the deficiency in the issuance of the special order in question must fail. Firestone’s second contention as to deficiencies in the administrative procedures followed by NHTSA in issuing this special order is similarly without merit. Firestone contends that NHTSA is without authority to compel the production of documents or the analysis thereof. In so contending, Firestone first relies on the language in sections 1401(c)(2) that NHTSA shall have “access to and the right to copy” relevant information. Firestone contends that the most that this section would authorize would be for NHTSA to send its representatives to Firestone’s headquarters to sift through, the documentation which Firestone would provide. Although the legislative history does not speak directly to this point," }, { "docid": "9944381", "title": "", "text": "would disrupt Firestone’s other business. The government contends that Firestone has had more than six months to date to answer 27 interrogatories, and that Firestone has some nowhere near compliance. Respondent in a subpoena enforcement action is hard put to attack an administrative subpoena or special order on the grounds of undue burdensomeness. As this Circuit Court stated in F. T. C. v. Texaco, Inc., supra: We emphasize that the question is whether the demand is unduly burdensome or unreasonably broad. Some burden on subpoenaed parties is to be expected and is necessary in furtherance of the agency’s legitimate inquiry and the public interest. The burden of showing that the request is unreasonable is on the subpoenaed party. Further, that burden is not easily met where, as here, the agency inquiry is pursuant to a lawful purpose and the requested documents are.relevant to that purpose. Broadness alone is not sufficient justification to refuse enforcement of a subpoena. Thus courts have refused to modify investigative subpoenas unless compliance threatens to unduly disrupt or seriously hinder normal operations of a business. 180 U.S.App.D.C. at 410, 555 F.2d at 882. The Second Circuit in S. E. C. v. Wall Street Transcript Corp., 422 F.2d 1371 (2d Cir.) cert. denied 398 U.S. 958, 90 S.Ct. 2170, 26 L.Ed.2d 542 (1970) indicated that a subpoena might be overbroad if it were to “go to the jugular” of a particular business. Id. at 1381. Indeed, subpoenas far broader than the special order presently under consideration have been enforced. See Oklahoma Press Club v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946) (records of all trading in interstate commerce during company’s history); S. E. C. v. Wall Street Transcript Corp., supra, (all correspondence with management, advertisers and subscribers over a four year'period). It cannot be said in this case that Firestone will be severely hampered in conducting its business if it is forced finally to produce information which it has known for six months was being sought. This is not to say that the special order is not extensive. The information requested covers approximately" }, { "docid": "9944382", "title": "", "text": "operations of a business. 180 U.S.App.D.C. at 410, 555 F.2d at 882. The Second Circuit in S. E. C. v. Wall Street Transcript Corp., 422 F.2d 1371 (2d Cir.) cert. denied 398 U.S. 958, 90 S.Ct. 2170, 26 L.Ed.2d 542 (1970) indicated that a subpoena might be overbroad if it were to “go to the jugular” of a particular business. Id. at 1381. Indeed, subpoenas far broader than the special order presently under consideration have been enforced. See Oklahoma Press Club v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946) (records of all trading in interstate commerce during company’s history); S. E. C. v. Wall Street Transcript Corp., supra, (all correspondence with management, advertisers and subscribers over a four year'period). It cannot be said in this case that Firestone will be severely hampered in conducting its business if it is forced finally to produce information which it has known for six months was being sought. This is not to say that the special order is not extensive. The information requested covers approximately four years, and in addition to general manufacturing information (models of tires, number produced and distributed, etc.), the special order requests information regarding consumer complaints, and suits against Firestone for damages due to accidents allegedly caused by defective tires. Although it might not be unreasonable to expect that NHTSA and Firestone might reach some accommodation and compromise the filing schedule, it is apparent that NHTSA has pursued this information for some time now, and that Firestone’s previous “final” response to the information request was seen by NHTSA as deficient in all respects. In light of this, it appears that Firestone has failed to show that the special order is so unduly burdensome as to require nonenforcement. Because NHTSA has satisfied all four criteria for enforcement of the special order, NHTSA’s petition to enforce will be granted. . Respondent has urged the court to accept the rationale of F. T. C. v. Western Dairies, Inc., 432 F.Supp. 31 (N.D.Cal.1977), in which the court held that the fact that a subpoena had issued out of Northern District" }, { "docid": "21999558", "title": "", "text": "U.S.App.D.C. 292, 298-300, 435 F.2d 96, 102-04 (1970). In Browning the court stated that the validity of a postcomplaint subpoena should be tested by its relevance to the charges of the complaint and not the sufficiency of the precomplaint investigation. Id. 140 U.S.App.D.C. at 299, 435 F.2d at 103. Furthermore, as noted earlier, the complaint in this action is not overly broad so as to make the present subpoena actually investigatory. See FTC v. Browning, 140 U.S.App.D.C. 298-300, 435 F.2d 96, 102-04 (1970). Finally, Texaco charges that the specification of the alleged violations has been or will be improperly delegated by the Commission to complaint counsel. The court is not faced with any issues concerning the amendment of the administrative complaint and such claims are not cognizable in the context of a subpoena enforcement petition. These claims are premature and have no bearing on the validity of the present subpoenas. Thus, this court is of the opinion that Texaco’s assertions in op position to the petition to enforce are without merit and the subpoena will be enforced against it. IV. Motions to Dismiss the Individual Respondents The last issue to be dealt with is the motions of the individual respondents to dismiss the corporate presidents named in this action, because they allegedly are superfluous and unnecessary parties. Respondents cite FTC v. Texaco, Inc., where Judge Hart dismissed the Commission’s enforcement action against individual respondents because he believed it was unnecessary to name the individuals to ensure compliance with the court’s enforcement order Nos. 1089-78 through 1095-73 (D.D.C. August 14, 1973), aff’d in part and rev’d in part on other grounds, 170 U.S.App.D.C. 323, 517 F.2d 137 (1975), rev’d en banc on other grounds, 180 U.S.App.D.C. 390, 555 F.2d 862 (1977), cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977); see FTC v. Menzies, 145 F.Supp. 164, 171 (D.Md.1956), aff’d, 242 F.2d 81 (4th Cir.), cert. denied, 353 U.S. 957, 77 S.Ct. 863, 1 L.Ed.2d 908 (1957) (dicta) (subpoenas should be directed to custodian of documents not corporate president). The FTC responds by citing cases where courts have" }, { "docid": "2367123", "title": "", "text": "669, 38 L.Ed.2d 674 (1974); Jensen v. National Marine Fisheries Service, 512 F.2d 1189, 1191 (9th Cir. 1975) (citing United Public Workers v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 91 L.Ed. 754 (1947)). CASEY II The Unions appeal from the district court order enforcing the subpoenas ad testificandum. Such an order is final and appealable for purposes of 28 U.S.C. § 1291 (1970). E. g., FTC v. Texaco, Inc., 180 U.S.App.D.C. 390, 555 F.2d 862, 873 n.21, cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). The district court’s role in a subpoena enforcement proceeding is strictly limited where the subpoena is attacked for lack of agency jurisdiction. The subpoena must be enforced if the information sought is “not plainly incompetent or irrelevant to any lawful purpose” of the FTC. Federal Maritime Commission v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975) (quoting Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943)). Accord, FTC v. Swanson, 560 F.2d 1, 2 (1st Cir. 1977); FTC v. Feldman, 532 F.2d 1092, 1098 (7th Cir. 1976). See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 94 L.Ed. 401 (1950); FTC v. Texaco, Inc., supra, 555 F.2d at 872-73 & n.23. The FTC offered three plausible jurisdictional grounds to justify its investigation; a conclusive showing is not necessary to justify enforcing a subpoena. Marshall v. Able Contractors, Inc., 573 F.2d 1055 at 1056 (9th Cir. 1978); FMC v. Port of Seattle, supra, 521 F.2d at 436. In United States v. Morton Salt Co., 338 U.S. at 642-43, 70 S.Ct. at 364, the Court explained the proper role of administrative investigation: The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are" }, { "docid": "13013381", "title": "", "text": "MacArthur, 532 F.2d 1135, 1141-43 (7th Cir. 1976). This of course eliminates a significant convenience factor involved in § 1404(a) determinations. In addition, enforcement proceedings normally require only the presence of counsel, due to the limited inquiry involved, see FTC v. Texaco, Inc., supra; and, even if the convenience of counsel were a proper consideration, it would not weigh in favor of transfer in this proceeding, since counsel are in large part from this district. A further and most important consideration is the additional delay attendant to transfer. Although this is a summary proceeding, it has been pending since July, 1977. Further delay, for whatever reason, must be supported by compelling reasons. Respondents present no such justification, and. in view of likely delay resulting from transfer to New York, transfer of this matter is singularly inappropriate. Respondents have failed to make a sufficient showing of inconvenience to parties or witnesses or that transfer would be in the interest of justice. 2. Motion to Dismiss the Individual Respondents In seeking to dismiss the individual corporate officers as unnecessary parties to this proceeding, the respondents cite and rely on FTC v. Texaco, Inc., Nos. 1089-73 through 1095-73 (D.D.C. August 14, 1973), aff’d in part and rev’d in part on other grounds, 180 U.S.App.D.C. 390, 555 F.2d 862, cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). They contend that the Commission seeks documents, not testimony, and that therefore the subpoenas can be enforced fully without the individuals. The Commission, relying primarily on FTC v. Anderson, 442 F.Supp. 1118, 1128 (D.D.C. 1977), asserts that it has discretion in naming corporate officers in addition to the corporations, such practice being customary in industry-wide investigations. Additionally, the Commission points out that although testimony probably will not be required at the time of production, there may well be need for such by the officers at a later time. Resolution of this issue depends on the particular circumstances involved. Anderson, 442 F.Supp. at 1128. Here, as in Anderson, while it appears that the Court could fully enforce the subpoenas without the individual respondents, in" }, { "docid": "9944376", "title": "", "text": "it is apparent that Congress intended that the Secretary and his delegates should have a broad information-gathering power inconsistent with the extremely limited authority envisioned by Firestone. The House Committee stated that the amendments contained in this section: authorize^] the Secretary to conduct informational hearings and to obtain evidence from any person who has any information relevant to the implementation of the Act. Despite the vital importance of information gathering to successful implementation of the Act, the Secretary does not possess general authority for this purpose. This lack is anomalous in view of the extensive information gathering authority in the property damage reduction provisions of the Motor Vehicle Information and Cost Savings Act. This paragraph would give the Secretary similar broad authority in the more important pursuit of preventing highway deaths and injuries. H.Rep.93-1191, supra, [1974] U.S.Code Cong. & Admin.News at 6070-71. It is clear that Congress sought to remedy a perceived lack of investigative authority in the Secretary under this act by granting the Secretary broad information gathering powers. Following Firestone’s argument would emasculate these newly-granted investigatory powers. As such, the court must read the requirements of this Act within the context of Congressional intent. The Secretary’s investigative power is broad enough to compel the production of documents and the analysis thereof. Indeed, section 1401(c) allows the Secretary to require the preparation of reports by “any person ... in such form as the Secretary may prescribe . . . .” It is clear, therefore, that the Secretary may require Firestone to analyze certain information Firestone has collected. To state that the Secretary may then be prevented from receiving the documents underlying such reports would be contrary to reason and to the intent of Congress. Thus, the court finds that NHTSA has issued the special order in question in accordance with the required administrative procedures. C. Relevance — NHTSA’s alleged Failure to Specify Which Responses are Deficient. The Circuit Court in F. T. C. v. Texaco, Inc., supra, stated that it is suffi cient to find that the material sought by administrative subpoena is “reasonably relevant” to a legitimate investigatory" }, { "docid": "13013377", "title": "", "text": "FTC Line of Business Report Litigation, 193 U.S.App.D.C. -, 595 F.2d 685 (1978); FTC v. Texaco, Inc., 180 Ú.S.App.D.C. 390, 555 F.2d 862 (1977), cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). Applying these clear precedents to the particular facts of this litigation, the Court denies the respondents’ procedural objections and will enter an order enforcing the subpoenas in their entirety. BACKGROUND On May 11, 1976, the FTC authorized an investigation of the methods of advertising and promotion employed by the cigarette industry. The Resolution Directing Use of Compulsory Process in Nonpublic Investigation identifies the nature and scope of the investigation as follows: To fulfill its obligation to report to the Congress pursuant to Section 8(b) of the Federal Cigarette Labeling and Advertising Act, as amended, and to gather and compile information make reports to the Congress as authorized by Section 6 of the Federal Trade Commission Act; and to determine whether persons, partnerships, or corporations engaged in the manufacture, advertising, promotion, offering for sale, sale, or distribution of cigarettes may have been or may be engaged in the use of unfair or deceptive acts or practices, in or affecting commerce; in the advertising, promotion, offering for sale, sale, or distribution of cigarettes in violation of Section 5 of the Federal Trade Commission Act. (Footnotes added.) As authority for the investigation, the Commission depends on §§ 6, 9, and 10 of the Act, 15 U.S.C. §§ 46, 49, 50; and FTC Procedures and Rules of Practice, 16 C.F.R. § 1.1 et seq. On May 12, the Commission issued the 28 subpoenas at issue here. The subpoenas, as modified following discussion between the parties, require production of documents or, in some instances, verified written statements, relating to: 1) respondents’ corporate organization and structure; 2) information prepared by or for respondents since January 1, 1964, concerning “consumers’ or potential consumers’ attitudes towards, beliefs about, perceptions or understanding of, or behavior relating to, cigarettes” and, since January 2,1971, cigarette advertising; 3) cigarette advertisements prepared by or for respondents since January 2, 1971, whether or not disseminated. In the fall" }, { "docid": "9944359", "title": "", "text": "in the District of Columbia is inconvenient. Second, Firestone alleges that since the Northern District of Ohio has before it a suit involving Firestone and NHTSA, this case should be transferred since it would be in the interests of justice to have one court decide both cases. For the reasons indicated below, this court finds that both of these arguments are unmeritorious, and that transfer is, therefore, unnecessary in this case. As for the argument based on considerations of convenience, it should be noted, from a purely practical point of view, that due to the lateness of respondent’s motion to dismiss or to transfer, this court has already held a hearing on the merits of NHTSA’s petition to enforce. It could, therefore, be said that because Firestone failed to raise these issues sooner and in a more timely fashion, any issue of convenience is now moot. However, such considerations aside, it does not appear that the factors indicated by Firestone warrant transfer of this proceeding on the grounds of inconvenience. A proceeding to enforce a subpoena or a special order is summary in nature, and except in the most extraordinary circumstances, discovery and testimony are not allowed. F. T. C. v. Texaco, Inc., 180 U.S.App.D.C. 390, 399-400, 555 F.2d 862, 871-72 (en banc), cert. denied 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). The burdens imposed by such a summary proceeding are clearly less onerous than those accompanying an ordinary civil action. F. T. C. v. Cockrell, supra, 431 F.Supp. at 560. Concomitantly, the importance of factors of convenience are reduced when the suit to be transferred is a summary enforcement proceeding. See id. This is especially true when the party claiming inconvenience is a corporation of the size and resources of respondent here. See General Electric Co. v. F. T. G, 411 F.Supp. 1004, 1011-12 (N.D.N.Y.1976). Firestone is only negligibly inconvenienced by the presence of the enforcement action in this district. Further, it is not readily apparent that the interests of convenience would be served even if this matter were transferred to the Northern District of Ohio." }, { "docid": "9944365", "title": "", "text": "1974). See 3 Sutherland, Statutory Construction (4th ed.) § 46.05. Similarly, one part of a statute must not be construed so as to render another part meaningless. Helvering v. Morgan’s, Inc., 293 U.S. 121,126-27, 55 S.Ct. 60, 62, 79 L.Ed. 232 (1934). To limit NHTSA’s power to issue subpoenas and special orders in the way suggested by Firestone would mean that the Secretary, through his delegate, would not be able to “sit and act at such times and places ... as the Secretary, or such officer or employee, deems advisable.” Rather, NHTSA’s investigative efforts would be fragmented and actions limited to those districts in which witnesses happened to reside. Not only would such a limitation be incongruous with the broad enforcement jurisdiction conferred upon federal district courts, see discussion, infra, but it would also be inconsistent with Congress’ desire to give the Secretary and his delegates the broad investigative powers necessary to protect public safety. Firestone’s position is, therefore, unacceptable. This court finds that NHTSA had the authority to issue the special order in question. D. Personal Jurisdiction. Having determined that NHTSA has the authority to issue administrative process nationwide, it is not difficult to find that this court does have personal jurisdiction over Firestone. Firestone has argued that since Firestone’s corporate headquarters were in Akron, only the federal court for the Northern District of Ohio would have the jurisdiction to enforce a subpoena or special, order issued against Firestone. Petitioner argues that the venue provision of 15 U.S.C.A. § 1401(c)(4) is actually an implied grant of the authority for extraterritorial service of process. The basis for petitioner’s contention is the fact that section 1401(c)(4) contains the same language as section 9 of the Federal Trade Commission Act, 15 U.S.C. § 49, and that section 9 has been interpreted as such an implied jurisdictional grant. F. T. C. v. Browning, 140 U.S.App.D.C. 292, 294-296, 435 F.2d 96, 98-100 (1970). Respondent has attempted to distinguish the holding in Browning, supra, on the ground that the Circuit court predicted its holding in that case on the fact that the F.T.C. had the" }, { "docid": "17657391", "title": "", "text": "The district court rejected this argument: Respondents, however, misconstrue the nature of the FTC’s inquiry in the present. case. The FTC inquiry here is not focused on respondents and their activities in Texas; rather, it is a nationwide inquiry and respondents are being subpoenaed merely as third-party witnesses. As such, it is clear that the Commission’s choice of the District of Columbia as the place for its inquiry does not exceed “the bound of reasonableness.” 431 F.Supp. at 559 (emphasis in original) (quoting FTC v. MacArthur, supra, 532 F.2d at 1140). Reasoning that the case was controlled by Browning, the district court concluded that it had jurisdiction to enforce the subpoenas. A similar result was reached in United States v. Firestone Tire & Rubber Co., 455 F.Supp. 1072 (D.D.C.1978), a case involving not a formal adjudicative proceeding before the FTC, but rather an informal investigation by the National Highway Traffic Safety Administration (NHTSA). In Firestone Tire, NHTSA brought suit in the District of Columbia to enforce “special orders,” akin to administrative subpoenas, issued to Firestone in connection with an investigation into alleged defects in Firestone’s steel-belted radial tires. The special orders, which were issued from the District of Columbia, sought information regarding the different types and quantities of tires produced and distributed by Firestone, consumer complaints about those tires, and suits against Firestone for damages due to accidents allegedly caused by tire defects. When NHTSA sued for enforcement in this jurisdiction under section 112(c)(4) of the National Traffic and Motor Vehicle Safety Act, Firestone urged the district court to conclude that it lacked jurisdiction because NHTSA’s “inquiry [was being] carried on” not in the District of Columbia, but rather in Ohio where Firestone maintained its corporate headquarters and the requested information was located. It was the view of the district court, however, that a finding of no jurisdiction in the District of Columbia would be contrary both to “common sense” and NHTSA’s broad investigative mandate to ensure highway traffic safety. The district court further observed: NHTSA’s concern is not with the activities of Firestone within the Northern District of Ohio," }, { "docid": "9944370", "title": "", "text": "other considerations nor investigate issues in collateral areas. F. T. C. v. Texaco, Inc., supra, 180 U.S.App.D.C. at 407, 555 F.2d at 879; F. T. C. v. Anderson, 442 F.Supp. 1118, 1122 (D.D. C.1977). It does not appear that NHTSA is under an obligation in this case to provide the type of additional administrative procedure requested by respondent. This court therefore must reject respondent’s motion to dismiss or in the alternative to transfer in full, and the court may proceed to the merits of this enforcement proceeding. II. Petition to Enforce Special Order. NHTSA’s special order consists of 27 interrogatories, and originally provided a 15- day response period to April 27, 1978. This was later extended to May 4,1978. On that date, Firestone submitted a partial response to the special order. Firestone objected to eight interrogatories but indicated that without waiving its objections, it would provide partial responses to the interrogatories. For one question (# 27) an incomplete answer was given with no promise to augment. For another (# 6), Firestone said it would answer the interrogatory only if NHTSA limited its extent. As to the remaining 17 interrogatories, Firestone refuses to answer at all. Firestone has not objected to each interrogatory separately, but has listed a number of grounds as justification for its refusals. These reasons are: (1) the special order is unreasonably burdensome; (2) the special order as written exceeds NHTSA’s authority to issue; (3) the special order was not properly authorized by the Secretary of Transportation; (4) NHTSA has failed to specify which of the interrogatories were insufficiently answered. Although there appear to be no reported eases in which the “special order” power of NHTSA has been interpreted, the language of 15 U.S.C. § 1401(c) is virtually identical to that of the FTC subpoena power provision in 15 U.S.C. § 49. As such, cases concerning the FTC’s power are of some relevance. The Court of Appeals for this Circuit has said that in order for an FTC subpoena to be valid, the information sought must be reasonably relevant to the purpose of the investigation, and the production" }, { "docid": "13013382", "title": "", "text": "as unnecessary parties to this proceeding, the respondents cite and rely on FTC v. Texaco, Inc., Nos. 1089-73 through 1095-73 (D.D.C. August 14, 1973), aff’d in part and rev’d in part on other grounds, 180 U.S.App.D.C. 390, 555 F.2d 862, cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). They contend that the Commission seeks documents, not testimony, and that therefore the subpoenas can be enforced fully without the individuals. The Commission, relying primarily on FTC v. Anderson, 442 F.Supp. 1118, 1128 (D.D.C. 1977), asserts that it has discretion in naming corporate officers in addition to the corporations, such practice being customary in industry-wide investigations. Additionally, the Commission points out that although testimony probably will not be required at the time of production, there may well be need for such by the officers at a later time. Resolution of this issue depends on the particular circumstances involved. Anderson, 442 F.Supp. at 1128. Here, as in Anderson, while it appears that the Court could fully enforce the subpoenas without the individual respondents, in view of the breadth of this cigarette advertising investigation and the strong likelihood that testimony would be required, the Court determines that the Commission acted within its discretion in naming the individual corporate officers. 3. Motion to Dismiss Certain Respondents for Lack of In Personam Jurisdiction Several of the respondents contend that they do not have sufficient “minimum contacts” with the District of Columbia to support personal jurisdiction here. As the Commission points out, however, that principle is inapplicable to a proceeding such as this brought pursuant to congressionally authorized nationwide service of process. 15 U.S.C. § 49. Certain respondents argue that they have not been properly served, and have submitted affidavits to that effect. The Commission argues, and the Court agrees, that even if personal service was not effected, the proper course is to allow reservice nunc pro tunc. They do not argue that they did not receive actual notice, and they are otherwise proper parties. 4. Motion for Limited Discovery Respondents request the opportunity to conduct discovery concerning: 1) the Commission’s official resolution" }, { "docid": "9944373", "title": "", "text": "motor vehicle equipment. 15 U.S.C. § 1401(c) allows for the Secretary, and by delegation NHTSA, to conduct investigations and issue special orders such as the one at issue here, for the accomplishment of any of the purr poses outlined in the Act. It is clear that automobile tires are motor vehicle equipment, and since this investigation is aimed at determining the extent to which certain tires manufactured by Firestone may be dangerously defective, it appears that this investigation is being carried on for a lawful purpose. Firestone has alleged that it is being treated more harshly than other similarly situated manufacturers, and that perhaps NHTSA is attempting to harass Firestone. However, the record is void of any evidence of harassment. Therefore, it appears that this special order meets this first criterion. B. Issuance according to Proper Administration Procedure. Firestone raises two objections to the procedure by which NHTSA has issued the special order at issue. First, Firestone contends that, pursuant to 15 U.S.C. § 1401(c), only the Secretary of Transportation himself may issue such a special order requiring the production of information. It is true that Section 1401(c) speaks only in terms of what the Secretary may do, and not in terms of what the Secretary or his delegates may do. It is also true that other sections of the Act make it clear that delegation is possible, while this section does not. However, the legislative history does not support Firestone’s reading of this section. The House Interstate and Foreign Commerce Committee, in reporting on the 1974 amendments to the National Traffic and Motor Vehicle Safety Act which increased the enforcement and investigative powers of the Secretary under the Act, indicated that special orders could be issued by the Secretary to gather information in support of his investigations. The Committee further noted that federal district courts would have jurisdiction to enforce “a subpoena or order of the Secretary or his officer or employee.” H.Rep.93-1191, 93d Cong., 2d Sess., as reprinted in [1974] U.S. Code Cong. & Admin.News pp. 6046, 6071. It is clear that Congress recognized that the special and" }, { "docid": "9944372", "title": "", "text": "of such information must not be an undue burden on respondent. F. T. G. v. Texaco, Inc., 180 U.S.App.D.C. 390, 409-11, 555 F.2d 862, 881-83 (1977), cert. denied 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977); F. T. C. v. Anderson, 442 F.Supp. 1118, 1122 (D.D.C.1977). In addition, any subpoena which the government seeks to enforce must relate to an investigation with a legitimate purpose, and must have been issued in accordance with proper administrative procedure. United States v. Powell, 379 U.S. 48, 57, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). It is apparent that Firestone’s four objections to this special order correspond roughly to these four prerequisites for enforcement of a subpoena. This being so, if this court finds that the special order in issue meets the four requirements for enforcement, then Firestone’s complaints will have been answered. A. Purpose of the Investigation. 15 U.S.C. § 1397(a) empowers the Secretary of Transportation, and by delegation NHTSA, to prohibit the manufacture and sale in interstate commerce any substandard motor vehicle or piece of motor vehicle equipment. 15 U.S.C. § 1401(c) allows for the Secretary, and by delegation NHTSA, to conduct investigations and issue special orders such as the one at issue here, for the accomplishment of any of the purr poses outlined in the Act. It is clear that automobile tires are motor vehicle equipment, and since this investigation is aimed at determining the extent to which certain tires manufactured by Firestone may be dangerously defective, it appears that this investigation is being carried on for a lawful purpose. Firestone has alleged that it is being treated more harshly than other similarly situated manufacturers, and that perhaps NHTSA is attempting to harass Firestone. However, the record is void of any evidence of harassment. Therefore, it appears that this special order meets this first criterion. B. Issuance according to Proper Administration Procedure. Firestone raises two objections to the procedure by which NHTSA has issued the special order at issue. First, Firestone contends that, pursuant to 15 U.S.C. § 1401(c), only the Secretary of Transportation himself may issue such a" }, { "docid": "9944371", "title": "", "text": "the interrogatory only if NHTSA limited its extent. As to the remaining 17 interrogatories, Firestone refuses to answer at all. Firestone has not objected to each interrogatory separately, but has listed a number of grounds as justification for its refusals. These reasons are: (1) the special order is unreasonably burdensome; (2) the special order as written exceeds NHTSA’s authority to issue; (3) the special order was not properly authorized by the Secretary of Transportation; (4) NHTSA has failed to specify which of the interrogatories were insufficiently answered. Although there appear to be no reported eases in which the “special order” power of NHTSA has been interpreted, the language of 15 U.S.C. § 1401(c) is virtually identical to that of the FTC subpoena power provision in 15 U.S.C. § 49. As such, cases concerning the FTC’s power are of some relevance. The Court of Appeals for this Circuit has said that in order for an FTC subpoena to be valid, the information sought must be reasonably relevant to the purpose of the investigation, and the production of such information must not be an undue burden on respondent. F. T. G. v. Texaco, Inc., 180 U.S.App.D.C. 390, 409-11, 555 F.2d 862, 881-83 (1977), cert. denied 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977); F. T. C. v. Anderson, 442 F.Supp. 1118, 1122 (D.D.C.1977). In addition, any subpoena which the government seeks to enforce must relate to an investigation with a legitimate purpose, and must have been issued in accordance with proper administrative procedure. United States v. Powell, 379 U.S. 48, 57, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). It is apparent that Firestone’s four objections to this special order correspond roughly to these four prerequisites for enforcement of a subpoena. This being so, if this court finds that the special order in issue meets the four requirements for enforcement, then Firestone’s complaints will have been answered. A. Purpose of the Investigation. 15 U.S.C. § 1397(a) empowers the Secretary of Transportation, and by delegation NHTSA, to prohibit the manufacture and sale in interstate commerce any substandard motor vehicle or piece of" }, { "docid": "11467078", "title": "", "text": "for this information, the CFTC has sufficiently exhausted alternative sources. In light of the foregoing, this Court finds that, while Platts is entitled to claim the privilege, it is abrogated by the public interest represented by the CFTC’s investigation and the CFTC’s showing of need and exhaustion of other sources. B. Burden McGraw-Hill argues that, even if Platts is not entitled to the reporter’s privilege, the Subpoena is not enforceable because it is “unduly broad and burdensome.” Respt.’s Mem. Opp’n 36. This Court must enforce the Subpoena if the information sought is reasonably relevant and not unduly burdensome. FTC v. Invention Submission Corp., 965 F.2d 1086, 1089 (D.C.Cir.1992) (quoting FTC v. Texaco, Inc., 555 F.2d 862, 872, 873 n. 23 (D.C.Cir.1977) (en banc) (quoting United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 94 L.Ed. 401 (1950)), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977)). As this Court has already found that the information sought goes to the heart of the CFTC’s investigation, this Court also finds that the information is reasonably relevant to the CFTC’s investigation. As to burden, this Court first notes that “[s]ome burden on subpoenaed parties is to be expected and is necessary in furtherance of the agency’s legitimate inquiry and the public interest.” Texaco, 555 F.2d at 882. To demonstrate undue burden, the party resisting the Subpoena must show that compliance “threatens to unduly disrupt or seriously hinder normal operations of [its] business.” Id. While this Court is unpersuaded that McGrawHill’s general complaints of the tediousness of compliance meet the undue burden standard, this Court does agree that some of the Requests are excessively broad on their face and technically call for a larger volume of data than may have been intended by the CFTC. To the extent that these Requests are unduly burdensome, this Court will modify them as explained infra Section II.C and in the accompanying Order. As modified, the Subpoena does not impose an impermissible burden on McGraw-Hill. C. Modification of the Subpoena Under Federal Rule of Civil Procedure 45(c)(3) and relevant case law," } ]

[ { "docid": "22681597", "title": "", "text": "Justice Rehnquist delivered the opinion of the Court. This case concerns the effect of 11 U. S. C. § 522(f)(2) (1976 ed., Supp. V), which permits individual debtors in bankruptcy proceedings to avoid liens on certain property. The Court of Appeals consolidated seven appeals from the Bankruptcy Courts for the Districts of Kansas and Colorado. In each case the debtor was an individual who instituted bankruptcy proceedings after the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2549 (1978 Act), became effective on October 1, 1979. In each case one of the appellees had loaned the debtor money and obtained and perfected a lien on the debtor’s household furnishings and appliances before the 1978 Act was enacted on November 6, 1978. None of these liens was possessory, and none secured purchase-money obligations. Included within the personal property subject to the appel-lees’ liens were household items that are exempt from the property included within the debtors’ estates by virtue of subsections (b) and (d) of § 522. The debtors claimed these exemptions in their respective bankruptcy proceedings, relying on § 522(f)(2) to avoid the liens. That section provides: “Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent 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 in struments, 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 or a dependent of the debtor.” The appellees asserted that application of § 522(f)(2) to liens acquired before the enactment date would violate the Fifth Amendment. The United States intervened in each case to defend the constitutionality of the" } ]

[ { "docid": "21911213", "title": "", "text": "supported by the Sturges and Prudential opinions, persuades us that the debtors’ delegation argument must fail. CONCLUSION There is a marked discrepancy between the federal and Illinois exemption provisions. If the Constitution required federal bankruptcy laws to be “truly” uniform, this difference would be unconstitutional. The Supreme Court established in Moyses, however, that only geographic uniformity is required by the bankruptcy clause of the Constitution. We find no evidence that the Supreme Court has retreated from the Moyses rule or that the Code differs from the 1898 Act in such a way as to make Moyses inapposite. The Moyses Court also held that it was not an unconstitutional delegation of federal power for the federal bankruptcy laws to recognize state exemption laws. Accordingly, the judgments of the bankruptcy court in Sullivan and the district court in West are AFFIRMED. . In its “Statement of the Issues,” Sullivan’s brief also challenges section 522(b) and the Illinois exemption law on equal protection grounds. The equal protection argument is not further developed in either the opening or reply brief. We therefore deem it waived for purposes of this appeal. E.g., Chicago & W. Ind R. R. Co. v. Motorship Buko Maru, 505 F.2d 579, 581 (7th Cir. 1974); see Fed.R.App.P. 28(a)(4). ., Unless otherwise indicated, all statutory references are to the Bankruptcy Code, enacted pursuant to the Bankruptcy Reform Act of 1978, Pub.L.No.95-598, 92 Stat. 2549 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787, and codified at 11 U.S.C. §§ 101-151326 (Supp. iv 1980). . pursuant to 28 U.S.C. § 1293(b) (Supp. III 1979)> the United States agreed t0 this direct appeal. _ Section 522(m) permits each spouse to claim the full exemptions if a joint petition has been filed, . Illinois Public Act 81-1505 is codified as Ill. Rev.Stat. ch. 52, 101 (Supp.1980). . The Illinois homestead exemption is not available to a debtor who does not provide a home for persons legally dependent upon him for support. Morris Investment Co. v. Skeldon, 399 Ill. 506, 78 N.E.2d 504 (1948). . The provision was amended by the Chandler Act of 1938, 52" }, { "docid": "2523195", "title": "", "text": "in the alternative did not question the amounts. The Trust Company alleges that a judgment was entered in the Court of Common Pleas of Indiana County on May 17, 1978 and that the judgment is a lien on real estate owned by the debtors in the Borough of Ernest, Indiana County, Pennsylvania. The Trust Company argues “that there is no retroactive application to avoid a security interest conveyed prior to November 6, 1978.” (Plaintiff’s brief, p. 3) Using a market value of $19,500.00 for the real estate and subtracting the $15,-000.00 exemption and the $800.00 cash exemption would permit the judgments exceeding $3,700.00 to be avoided in reverse order of priority. The issue before this Court is a constitutional question of whether 11 U.S.C. § 522(f) allows debtors avoidance of judicial liens which have attached to property prior to the enactment of the Bankruptcy Code. Constitutional attacks on the lien avoiding provisions are numerous, and a resolution of the issue is needed here. The Court takés judicial notice that on November 6, 1978 the President signed Public Law 95-598, Title 1 which was codified as Title 11 of the U.S.Code and is now the Bankruptcy Code; it became effective on October 1, 1979. The Congressional Record reveals that one of the goals of the Code was to provide a more modern bankruptcy mechanism for consumer debtors. Congress recognized that consumer credit had become a very important element of the economy. Since 1938 there had been little or no revision of the federal Bankruptcy Act. Congress found that most state exemption laws had not been revised for a long period of time and were outmoded. Congress desired to make bankruptcy “a more effective remedy for the unfortunate consumer debtor.” H.Rep.No. 95-595, reprinted in U.S.Code of Cong. & Adm.News 5787, 5963, 5966, 6087 (1978). Congress concluded that there was a federal interest in seeing that a debtor survived bankruptcy with adequate recourse and possessions to avoid being a public charge and to be given a fresh start. Under the new Bankruptcy Reform Act, in order to accomplish these purposes, Congress established a" }, { "docid": "23075658", "title": "", "text": "the portion of the fee which related to pre-petition services. In re Land Investors, Inc., 544 F.2d 925, 928 (7th Cir. 1976); In re S. T. Foods, Inc., 202 F.Supp. 37 (S.D.N.Y.1962); 3A Collier’s on Bankruptcy H 64.02[2], at 2065-69 (14th ed. 1975). As found by the bankruptcy court, 95 percent of Alioto’s services were rendered prior to the Chapter XI arrangement, and thus 95 percent of the $1.5 million award, or $1,425,000, should have been set aside in satisfaction of Alioto’s lien against the settlement proceeds and immediately awarded to Alioto. Id. The OCC is correct, however, in its claim that, at the very least, the remaining 5 percent of the award is properly classified as an expense of administration. The services rendered by Alioto during this period were for the benefit of the new debtor in possession and thus were subject to the April, 1978, general retainer agreement. The district court, however, set aside $340,000 of the award pending the outcome of this appeal. See note 4 supra. We reverse the district court’s order awarding this amount to Alioto and order $265,000 disbursed to Alioto, which will constitute payment of the balance of his state law lien. The remaining $75,000, representing the fees for services performed during PFEL’s arrangement, is to be held in the court’s registry pending computation of the value of Alioto’s services rendered during the arrangement under the general economical spirit of the Bankruptcy Act of 1898. York Int’l Bldg., Inc. v. Chaney, 527 F.2d 1061 (9th Cir. 1975). After such computation, this fee should be distributed as any other expense of administration. Affirmed in part, reversed in part, and remanded with instructions. . Act of July 1, 1898, ch. 541, §§ 301-399, 30 Stat. 544 (1898), as amended by Act of June 22, 1938, ch. 575, 52 Stat. 883 (1938). Since the operative events occurred before the effective date of the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (1978) (codified at U U.S.C. §§ 101-1330 (Supp. Ill, 1979)), the provisions of the 1898 Act control, id. § 403, and all" }, { "docid": "8518073", "title": "", "text": "This proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B), (G), (L) and (O). These determinations are the subject of further explanation in this decision. ISSUES AND ARGUMENTS PRESENTED FOR DETERMINATION On August 1, 2006, MERS filed a Motion For Order Confirming Inapplicability Of The Automatic Stay Pursuant To 11 U.S.C. Section 362(c)(3)(C)(ii) (Doc. 25) arguing that the plain meaning of § 362(c)(4)(A)(ii) requires the Court to promptly enter an order confirming the automatic stay did not go into effect in this case. Specifically, the creditor argued that these individual Debtors, had two pri- or, joint cases pending within the previous year and, since both of those cases were dismissed and no other factors prevent the relief requested, the automatic stay did not go into effect when the petition in the present case was filed. On August 21, 2006, the Debtors filed the Debtors’ Response To Motion For Order Confirming Inapplicability Of The Automatic Stay Pursuant To 11 U.S.C. Section 362(c)(3)(C)(ii) (Doc. 32), in which they concede the prior filings and dismissals; however, they argue that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the “2005 Act”) does not contain any “[ejxpress language diminishing the jurisdiction of the Court over the estate property. Moreover, [the 2005 Act] made no change to the pre-2005 Act language of section 1306 (Property of the Estate) and 1327 (effect of Confirmation)”, and conclude the stay must remain “in effect as to property of the estate.” DETERMINATION OF ISSUES PRESENTED The Court will enter an order confirming that the automatic stay is not in effect in this case and determining that all actions involving property of the estate must be commenced in this bankruptcy court during the pendency of this case. ANALYSIS When Congress enacted the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (the Code), it repealed and completely replaced the prior bankruptcy legislation (the Bankruptcy Act of 1898, Pub.L. No. 55-171, amended by the Chandler Act of 1938, Pub.L. No. 75-696, 52 Stat. 840). When Congress enacted the 2005 Act, Pub.L. No. 109-8, 119 Stat." }, { "docid": "4701295", "title": "", "text": "unconstitutionality. Many courts have addressed the issue of the constitutionality of § 522(f)(1) and (2), with varied results. After consid eration of the issue, we conclude that § 522(f)(2) is constitutional and may be applied to avoid the lien of G.EiC.C. on the household goods claimed as exempt by the debtors. Preliminarily, we deduce that it was the intent of Congress that § 522(f)(2) be applied retroactively to affect liens which were perfected prior to the enactment date of the Code because § 403(a) of The Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2683 (1978) provides that: (a) 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 this Act 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 Act had not been enacted. Hence, only cases commenced prior to the effective date of the Code (October 1, 1979) are governed by the provisions of the former Bankruptcy Act (“the Act”). For all other purposes, the Act is repealed. Thus, in cases filed after October 1, 1979, if Congress did not intend the provisions of the Code to apply to security interests or liens perfected prior to that date, there would be no bankruptcy law in effect to deal with those interests. Consequently, we infer that Congress intended the provisions of the Code, namely § 522(f), to apply to such security interests and liens. The purpose of Congress in enacting § 522(f)(2), and in providing for its retroactive application, was to give the debtor a fresh start and to protect the debtor and his family from the unfair advantage which it found many creditors had over the debtor. Congress concluded that frequently creditors lending money to a consumer debtor took a security interest in all of the debtor’s household goods. Their purpose in doing so, Congress found, was not" }, { "docid": "14859426", "title": "", "text": "he had previously agreed to create the lien by granting to the creditor/lienholder a security interest in the property. Hall v. Finance One of Georgia, Inc. (In re Hall), 752 F.2d 582, 584 (11th Cir.1985); Matthews v. Transamerica Financial Services (In re Matthews), 724 F.2d 798, 800 (9th Cir.1984) (per curiam); Augustine v. United States, 675 F.2d 582, 584-85 (3d Cir.1982); In re Nowak, 43 B.R. 545, 546 (Bankr.W.D.Wis.1984); In re Dipalma, 24 B.R. 385 (Bankr. D.Mass.1982). The language of the statute is straightforward — the avoiding power applies “[njotwithstanding any waiver.” 11 U.S.C. § 522(f). We think that section 522(f) thus remains effective despite a waiver of the homestead exemption. Statements in the legislative history of the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (codified as amended at 11 U.S.C. §§ 101-151326 (1982 & Supp. II 1984)), lend support to this conclusion. As the Eleventh Circuit has summarized: Congress evidenced its concern about over-reaching creditors who obtained nonpossessory, nonpurchase-money security interests covering a substantial part of debtors’ otherwise exempt property. Congress found that debtors usually granted blanket security interests, and agreed to waive their right to exempt property, without understanding the consequences of their actions. The property subject to these liens often was of little value to the creditors, because of its low resale value, but its replacement cost to debtors was usually high. Accordingly, creditors, although they did not view the property as a source of funds to which they could turn in the event o.f default, often used the threat of foreclosure to coerce debtors into making payments. Under section 522(f), debtors can now protect themselves from this practice by avoiding these liens in bankruptcy. Hall v. Finance One of Georgia, Inc. (In re Hall), 752 F.2d 582, 588 (11th Cir.1985); see H.Rep. No. 595, 95th Cong., 1st Sess. 126-27 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6087-88. The Senate Report, in describing the provision which became subsection (f), noted that it protects the debtor’s exemptions, his discharge, and thus his fresh start by permitting him to avoid certain liens" }, { "docid": "18570910", "title": "", "text": "one of law. As for the former, the only matter left unresolved was whether appellants’ judgment for attorney’s fees qualifies as a “consumer debt” under 11 U.S.C. § 101(7). Since the underlying facts are not disputed, the question is one in which legal issues predominate and is thus subject to de novo review. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The policies of judicial efficiency and finality are best served by our resolving the question now. II. Section 707(b) Dismissal Title III of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 355 (the 1984 Act) added the so-called consumer credit amendments to the Bankruptcy Code as it had been originally enacted by the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (the 1978 Act). Included in these amendments was new subsection 707(b), which provided: After notice and a hearing, the court, on its own motion and not at the request or suggestion of any party in interest, may. dismiss a case filed by an individual debt- or under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter [7]. There shall be a presumption in favor of granting the relief requested by the debtor. 11 U.S.C. § 707(b) (Supp. Ill 1985). The Kellys dispute the applicability of this provision to their case. A. Primarily Consumer Debts 1. The first question we must address is whether some or all of the Kellys’ debts constitute “consumer debts” within the meaning of the Code. As an initial matter, the Kellys argue that debts secured by real property are never consumer debts, relying on floor statements made in the House and Senate prior to the enactment of the 1978 Act. See 124 Cong.Rec. S17,406 (daily ed. Oct. 6, 1978) (statement of Sen. DeConcini) (“[a] consumer debt does not include a debt to any extent the debt is secured by real property”);" }, { "docid": "21911214", "title": "", "text": "brief. We therefore deem it waived for purposes of this appeal. E.g., Chicago & W. Ind R. R. Co. v. Motorship Buko Maru, 505 F.2d 579, 581 (7th Cir. 1974); see Fed.R.App.P. 28(a)(4). ., Unless otherwise indicated, all statutory references are to the Bankruptcy Code, enacted pursuant to the Bankruptcy Reform Act of 1978, Pub.L.No.95-598, 92 Stat. 2549 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787, and codified at 11 U.S.C. §§ 101-151326 (Supp. iv 1980). . pursuant to 28 U.S.C. § 1293(b) (Supp. III 1979)> the United States agreed t0 this direct appeal. _ Section 522(m) permits each spouse to claim the full exemptions if a joint petition has been filed, . Illinois Public Act 81-1505 is codified as Ill. Rev.Stat. ch. 52, 101 (Supp.1980). . The Illinois homestead exemption is not available to a debtor who does not provide a home for persons legally dependent upon him for support. Morris Investment Co. v. Skeldon, 399 Ill. 506, 78 N.E.2d 504 (1948). . The provision was amended by the Chandler Act of 1938, 52 Stat. 847 (1938) (repealed 1978) to read as follows: This Act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the laws of the United States or by the State laws in force at the time of the filing of the petition in the State where they have had their domicile for the six months [or the greater portion thereof] immediately preceding the filing of the petition, or for a longer portion of such six months than in any other State .... We do not find that this amendment, cited without discussion by the appellants, alters our analysis. . Nemetz, an admitted homosexual, had committed sexual acts that were illegal under Virginia law. . Other courts which have considered the issue raised in this appeal and in Rhodes have found section 522(b)(1) to be constitutional. See In re Lausch, 16 B.R. 162 (M.D.Fla.1981) (affirming 12 B.R. 55 (Bkrtcy.M.D.Fla.1981)); In re Curry, 5 B.R. 282 (Bkrtcy.N.D.Ohio 1980); In re Ambrose, 4 B.R. 395 (Bkrtcy.M.D.Ohio 1980). As noted previously, the instant cases" }, { "docid": "1543517", "title": "", "text": "state substantive rule that we should decide this case. Although we recognize that historically the bankruptcy laws have been hostile to secret liens and that the case law has recognized the power of the trustee to defeat unprotected liens, we disagree that this means that federal law determines the scope of a trustee’s avoidance powers. Most importantly, we note that the Bankruptcy Reform Act of 1978, Pub.L. 95-598, Title IV, § 401(a), Nov. 6, 1978, 92 Stat. 2682 (codified as amended at 11 U.S.C. §§ 101-1330 (1988)), not only eliminated § 60(a)(6), but also repealed the Bankruptcy Act of 1898. Since the current Bankruptcy Code contains no analogous provision, opinions that directly or indirectly construed § 60(a)(6) and the Bankruptcy Act of 1898 are not binding upon us. In addition, as the legislative history of the Bankruptcy Reform Act of 1978 shows, Congress intended that the strong arm provisions “should not require a transferee to perfect a transfer against an entity with respect to which applicable law[, i.e., state law,] does not permit perfection.” 124 Cong.Rec. 32,400 (1978) (statement of Rep. Don Edwards of Califor nia, a sponsor of the proposed Code), reprinted in 1978 U.S.C.C.A.N. 5963, 6456. Similarly, the language “against whom applicable law permits such transfer to be perfected” was included in § 544(a)(3) “so as not to require a creditor to perform the impossible in order to perfect his interest.” Id. The case law has uniformly recognized that this legislative history indicates Congress in enacting § 544(a)(3) “did not intend to transform the trustee into a ‘super-priority’ creditor,” In re Elin, 20 B.R. 1012, 1018-19 (D.N.J.1982) (citing Hogan, Bankruptcy Reform and Delayed Filing Under the U.C.C., 35 Ark.L.Rev. 35, 43-44 (1981)), or to grant the trustee “a substantial additional mantle of power not available to any actual [creditor or] subsequent purchaser [under state law],” McCannon v. Marston, 679 F.2d 13, 16-17 (3d Cir.1982). It is thus clear from the legislative history of the 1978 Act and from case law that although the trustee’s strong arm powers arise under federal law, the scope of these avoidance powers vis-a-vis" }, { "docid": "2406530", "title": "", "text": "facilitates liquidation. Thus, we must consider whether one who files a voluntary petition for Chapter 11 protection is “bankrupt” within the meaning of Texas partnership law. The Texas Uniform Partnership Act states that “ ‘bankrupt’ includes bankrupt under the Federal Bankruptcy Act.” Tex.Rev.Civ. Stat.Ann. art. 6132b § 2. This is a deceptively simple statement, and we must review some legislative history to properly convey our difficulties in construing section 2. Congress consolidated federal bankruptcy law in the Bankruptcy Act of 1898. See Act of July 1, 1898, c. 541, 30 Stat. 544. At that time, bankruptcy law only facilitated liquidation. Not until 1933 did Congress amend the Bankruptcy Act to permit reorganization of certain entities. See Pub.L. No. 72-420, 47 Stat. 1474 (1933). In 1938, Congress amended the Bankruptcy Act with the precursor to Chapter 11 to facilitate general corporate reorganization. See Act of June 22, 1938, Pub.L. No. 74-575, 52 Stat. 840 (1938). Until Congress substantially revised the Bankruptcy Act with the Bankruptcy Reform Act of 1978, the Bankruptcy Act apparently referred to entities undergoing Chapter 7 liquidation as “bankrupts,” and those undergoing Chapter 11 reorganization as “debtors.” See S. Rep. No. 989, 95th Cong., 2d Sess. 23 (1978), reprinted, in Historical and Revision Notes following 11 U.S.C.A. § 101(12) at 36 (1979), and reprinted in 1978 U.S.C.C.A.N. 5787, 5809. But the Bankruptcy Reform Act of 1978 removed all references to “bankrupt” in federal bankruptcy law, created the Bankruptcy Code, 11 U.S.C. § 101 et seq., and adopted “debtor” to refer to all who seek protection under the Code, whether they do so through liquidation under Chapter 7 or reorganization under Chapter 11. See 11 U.S.C. § 101(12); see generally H.R. Rep. No. 595, 95th Cong., 2d Sess. 3-5 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 5965-66 (recounting Reform Act’s history and purpose). When the Texas legislature referred to the “Federal Bankruptcy Act” in enacting section 2 in 1961, it could have meant the Federal Bankruptcy Act as written in 1898, as it stood in 1961, or as amended over time. The language of section 2 accords with any of" }, { "docid": "18729742", "title": "", "text": "JAMESON, District Judge: Credithrift of America, Inc. (Credithrift) perfected liens on personal property of the debtors between the enactment date (November 6, 1978) and the effective date (October 1, 1979) of the Bankruptcy Reform Act of 1978. Credithrift has appealed from two decisions of the Bankruptcy Court for the District of Oregon which applied 11 U.S.C. § 522(f) of the Reform Act to those liens, thereby allowing their avoidance by the debtors. The sole question on appeal is whether § 522(f) may constitutionally be applied to liens perfected after the enactment date but before the effective date of the Act. I. Legislative Background The Reform Act was passed by Congress on October 6, 1978 and signed into law by the President on November 6, 1978. The effective date of the Act was October 1, 1979. A primary goal of the Reform Act, the first major revision of the Bankruptcy Act since 1938, was to provide an effective modern bankruptcy mechanism for consumer debtors. Congress recognized that consumer credit had become a fundamental element of the post-war economy and that the laws needed reform to make “bankruptcy a more effective remedy for the unfortunate consumer debtor.” H.R.Rep.No.95-595, 95th Cong., 2nd Sess. 4 (1978), reprinted in 5 U.S.Code Cong. & Ad.News 5787, 5966 (1978). Congress found that most state bankruptcy laws were as outmoded as the federal laws and that there was a federal interest in seeing that a debtor survives bankruptcy with adequate possessions to avoid becoming a public charge and to make a fresh start. Id. at 126, reprinted in 5 U.S.Code Cong. & Ad.News 6087. Accordingly, Congress established a set of federal exemptions which serve as an alternative to state bankruptcy law exemptions. Section 522(d) of the Reform Act provides for the exemption of specified personal property from the portion of the debtor’s estate subject to sale in bankruptcy for the satisfaction of debts, including (3) The debtor’s interest, not to exceed $200 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments, that are held primarily for the" }, { "docid": "3932917", "title": "", "text": "of the creditors’ rights under the mortgage in Radford, the creditor retains the security interest in the property that exceeds the amount of the exemption. The ability of the creditor to enforce the retained security interest will hinge on the sufficiency of the collateral in the first instance and not the operation of section 522(f). In this sense the lien avoidance power is not a “taking,” but can more accurately be described as a constitutionally permissible “interference ... from ... [a] public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Central, supra 438 U.S. at 124, 98 S.Ct. at 2659. IV. The Ohio lien conservation provision does not follow into bankruptcy the debtor claiming state exemptions. Also, the debt- or filing under the Reform Act may avoid preenactment liens to the extent allowable under section 522(f). The creditor has no fifth amendment “property” interest in section 522(f) articles. Nor is the limited avoidance power a “taking.” The orders by the bankruptcy courts allowing the avoidance of liens under 11 U.S.C. § 522(f) are hereby affirmed. IT IS SO ORDERED. . Pursuant to 28 U.S.C. § 2403 the United States Attorney was notified that in each appeal the constitutionality of 11 U.S.C. § 522(f) is drawn into question. The government has declined to intervene. . The Reform Act, Title I, § 101, codifies and enacts the substantive law relating to bankruptcy as title 11 of the United States Code. 92 Stat. 2549. . A transition period was established to assess the needs of the new bankruptcy system. This transition period for the Reform Act began on October 1, 1979 and ends on March 31, 1984. Pub.L. No. 95-598, Title IV § 404(b), 92 Stat. 2683. As one of three possible appellate avenues during the transition period, § 405(c)(1)(C), allows appeal to be taken “to the district court for the district in which the bankruptcy judge sits.” 92 Stat. 2685. . Congressional perception of this problem and proposed remedy is found in H.R.Rep.No.95-595, 95th Cong., 2d Sess. 127 reprinted in [1977] U.S.Code Cong. & Ad.News" }, { "docid": "10306664", "title": "", "text": "been reduced to judgment prior to the effective date of the Amendment are subject to the increased exemption amount.” Id. at 265 n. 12. Thus, 1256 Hertel argues that because it has secured its debt, this case is distinguishable from the rule announced in Hayward, and the 2005 amendment should not apply to Callo-way. 1256 Hertel argues that United States v. Security Industrial Bank compels this result. 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982). There the Court declined to extend the 1978 Bankruptcy Act to pre-existing liens because of the “difficult and sensitive questions arising out of the guarantees of the takings clause.” Id. at 82, 103 S.Ct. 407. But Security Industrial Bank case is distinguishable from the case at bar because it did not consider a mere increase in the amount of the exemption, but rather the initial implementation of the exemption by Congress in the first place. See Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549 (1978). This is an important distinction because when 1256 Hertel secured its judgment, the law subjecting its lien to an exemption was already in place. As noted by the Second Circuit, New York law has provided a homestead exemption since 1850 and the amount of the exemption has periodically increased to reflect changing economic conditions. Hayward, 552 F.3d at 260-61. It follows then § 5206 does not implicate “difficult and sensitive questions arising out of the takings clause” because “[t]he lien was born subject to [Calloway’s] right to avoid it” and the Homestead exemption was subject to change according to varying economic conditions. See In re Leicht, 222 B.R. 670, 683 (1st Cir. BAP 1998). In other words, the alleged taking effected no diminution in 1256 Hertel’s rights because its rights were always subject to limitation if Calloway filed for bankruptcy. See In re Betz, 273 B.R. 313, 326 (Bankr.D.Mass.2002) (“When [Creditor’s] hen arose, he knew or should have known that, in the event of the Debtors’ bankruptcy, § 522(f) might impact upon his lien and that the underlying state court exemptions might be adjusted" }, { "docid": "14859440", "title": "", "text": "Virginia Supreme Court more recently has upheld the waiver provision, observing that the right to waive the homestead exemption is as much a part of the statutory scheme as the right to claim the exemption. See, e.g., Home Owners’ Loan Corp. v. Reese, 170 Va. 275, 279, 196 S.E. 625, 626 (1938); see also Barbarossa v. Beneficial Finance Co., 438 F.Supp. 840 (E.D.Va.1977) (rejecting the notion that the homestead waiver is either unconstitutional under state law or void as against public policy). Section 522(f) seems to leave little doubt, however, that waivers of exemption are unenforceable. The section begins “Notwithstanding any waivers of exemptions. ...” 11 U.S.C. § 522(f) (1982). Pertinent legislative history indicates that “[t]he avoiding power is independent of any waiver of exemptions.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 361-62, reprinted in 1978 U.S.Code Cong. & Ad.News 6318. Some courts have decided that state law can limit debtors’ lien-avoidance powers, but these decisions have been soundly criticized. I do not take issue with Congress’ apparent intent to override exemption waivers in section 522(f). Congress has the power under the Constitution to establish uniform bankruptcy laws, U.S. Const, art. 1, § 8,- and its acts pursuant to that power are the supreme law of the land. U.S. Const, art. 6. What concerns me is the ill-considered and, from all appearances, uninformed way that Congress has constructed an exemption scheme that is self-contradictory on its face. The opt-out provision evidences deference to state exemption schemes such as that in Virginia, as does the interpretation of subsection 522(Z) in Zimmerman, yet subsections 522(f) as well as 522(m), as it is interpreted in Cheeseman, tend to gut significant parts of that scheme. Although the BRA has improved the general state of bankruptcy law, it has in no sense “reformed” the subject of bankruptcy exemptions. Perhaps section 522 is one of those reforms that, as Samuel Taylor Coleridge once put it, itself will need reforming. Surely Congress can do better. . Pub.L. No. 95-598, 92 Stat. 2549 (codified at 11 U.S.C. §§ 101-151326 (1982)). . See Ala.Code § 6-10-11 (Supp.1985); Alaska Stat." }, { "docid": "10306670", "title": "", "text": "clearly viewed that ‘bundle’ as being sufficiently identified with specific property that it merited the protection of the takings clause even if the simple contractual right of a creditor to be repaid would not.” Peick v. Pension Ben. Guar. Corp., 724 F.2d 1247, 1276 (7th Cir.1983) (quoting Sec. Indus. Bank, 459 U.S. at 76, 103 S.Ct. 407.) However, even if 1256 Hertel’s security interest is protectable under the Takings Clause, the result of the Bankruptcy Court remains unchanged. If any taking occurred, it would surely be regulatory in nature because § 5206 “does not present the ‘classic taking’ in which the government directly appropriates private property for its own use.” See Buffalo Teachers, 464 F.3d at 375 (internal citation and some quotation marks omitted). Rather, there can be little doubt that § 5206 “arises from a public program adjusting the benefits and burdens of economic life to promote the common good.” See id. (internal citation omitted); see also Hayward, 552 F.3d at 264 (“The 2005 Amendment’s clear objective was to update the statute to reflect current economic conditions and to once again protect debtors from losing their homes — a goal more likely to be advanced with a $50,000 exemption amount.”). As such, courts consider three factors in determining whether the interference with property rises to the level of a regulatory taking: “(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.” Buffalo Teachers, 464 F.3d at 375 (internal citation and quotation marks omitted). While the first factor arguably weighs in 1256 Hertel’s favor, the second and third establish that no taking occurred here. Mirroring the discussion above, § 5206 does not interfere with 1256 Hertel’s investment-backed expectations because at the time it secured its lien, it was aware (or should have been aware) that if Callo-way later filed for Bankruptcy, its lien would be subject to an exemption that itself was subject to change according to varying economic conditions. See In re Punke, 68 B.R. 936 at 943." }, { "docid": "10306663", "title": "", "text": "does have retroactive effect. In CFCU Community Credit Union v. Hayward, the court noted that “retroactive operation is not favored by New York courts” but ultimately concluded that “[i]n light of the legislative finding that the increased exemption amount was long overdue and that the old amount was unrealistic in today’s economy, it would defeat the intent of the Legislature to judicially engraft an anti-retroactivity provision ... onto the statute where none exists.” 552 F.3d 253, 262-65 (2d Cir.2009). 1256 Hertel argues that a different rule of retroactivity should apply in this case because the court limited its finding to non-secured debts. Indeed, the Hayward court characterizes its rule this way: “[A] New York debtor’s ability to invoke the increased homestead exemption is determined not by the date the debtor’s unsecured contract debt was incurred, but rather, by the date upon which the debtor files his or her bankruptcy petition.” 552 F.3d at 265 (emphasis added). The court further noted: “We reiterate that we are only asked to determine if contract-based debts that have not been reduced to judgment prior to the effective date of the Amendment are subject to the increased exemption amount.” Id. at 265 n. 12. Thus, 1256 Hertel argues that because it has secured its debt, this case is distinguishable from the rule announced in Hayward, and the 2005 amendment should not apply to Callo-way. 1256 Hertel argues that United States v. Security Industrial Bank compels this result. 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982). There the Court declined to extend the 1978 Bankruptcy Act to pre-existing liens because of the “difficult and sensitive questions arising out of the guarantees of the takings clause.” Id. at 82, 103 S.Ct. 407. But Security Industrial Bank case is distinguishable from the case at bar because it did not consider a mere increase in the amount of the exemption, but rather the initial implementation of the exemption by Congress in the first place. See Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549 (1978). This is an important distinction because when 1256 Hertel" }, { "docid": "3932896", "title": "", "text": "ORDER CONTIE, District Judge. The Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (hereinafter referred to as the Reform Act), was enacted primarily to face the realities of contemporary commercial and consumer financial practices by modernizing both the substantive and procedural aspects of the bankruptcy laws. These appeals call into question the construction, retroactivity, and constitutionality of the Reform Act’s lien avoidance provision, 11 U.S.C. § 522(f). Each of the above captioned cases is an appeal from the United States Bankruptcy Court for the Northern District of Ohio. These cases were consolidated to resolve here the issues of law each has in common with the other. See Fed.R.App.P. 3(b); Fed.R.Civ.P. 42(a). I. The significant questions these cases present on appeal to this Court for resolution may be synopsized as follows. First, does the lien conservation provision of the federally authorized Ohio exemption statute restrict the availability of exemptions from the bankrupt’s estate and ultimately lien avoidance under the federal bankruptcy laws? Second, does the federal lien avoidance provision retrospectively reach pre-en-actment consensual liens without violating the taking clause of the fifth amendment to the federal Constitution? The Court answers the first question in the negative and the second question in the affirmative. The relevant facts and procedural aspects of each of the four above captioned cases follow the same paradigm. Before either the Reform Act’s enactment date, November 6,1978, or the effective date, October 1, 1979, a nonpossessory, nonpurchase-money security interest in the debtor’s household and personal goods was taken by the creditor. None of the cases involve liens created after the enactment date but before the effective date. After the effective date of the Reform Act, the debtor filed in this District a voluntary chapter VII petition in bankruptcy. Upon application the debtor made pursuant to 11 U.S.C. § 522(f), which allows the debtor to avoid liens in exempted property, the bankruptcy court ordered the creditor’s lien avoided. The creditor perfected an appeal to this Court, essentially arguing that the lien avoidance provision cannot, for a variety of reasons, reach consensual liens created prior to both" }, { "docid": "8518074", "title": "", "text": "however, they argue that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the “2005 Act”) does not contain any “[ejxpress language diminishing the jurisdiction of the Court over the estate property. Moreover, [the 2005 Act] made no change to the pre-2005 Act language of section 1306 (Property of the Estate) and 1327 (effect of Confirmation)”, and conclude the stay must remain “in effect as to property of the estate.” DETERMINATION OF ISSUES PRESENTED The Court will enter an order confirming that the automatic stay is not in effect in this case and determining that all actions involving property of the estate must be commenced in this bankruptcy court during the pendency of this case. ANALYSIS When Congress enacted the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (the Code), it repealed and completely replaced the prior bankruptcy legislation (the Bankruptcy Act of 1898, Pub.L. No. 55-171, amended by the Chandler Act of 1938, Pub.L. No. 75-696, 52 Stat. 840). When Congress enacted the 2005 Act, Pub.L. No. 109-8, 119 Stat. 23, it did not repeal or replace the prior bankruptcy legislation (the Code). Instead, Congress merely attached a sidecar (the 2005 Act) to the existing bankruptcy vehicle (the Code). The operation of this oddly constructed vehicle is frequently difficult, depending on whether it is controlled solely by the provisions of the Code, solely by the provisions of the 2005 Act, or, as in this case, by some provisions of the 2005 Act and some provisions of the Code. PRELIMINARY ISSUE— “PROMPTLY” Section 362(c)(4) (A) (ii) provides that “on request of a party in interest, the court shall promptly enter an order confirming that no stay is in effect.” (emphasis added) This section is new language added by the 2005 Act and the word promptly is not defined within § 101 — Definitions, nor does it appear in § 102 — Rules of Construction, nor is assistance available from provisions of the Dictionary Act. 1 U.S.C. § 1. As detailed later, the provisions of § 362(c) distinguish between circumstances where the automatic stay of § 362(a)" }, { "docid": "14234718", "title": "", "text": "I. Bankruptcy’s Purpose is to Provide Debtors with a Fresh Start Congress enacted the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 to make “bankruptcy a more effective remedy for the unfortunate consumer debtor.” H.R. Rep. No. 95-595, at 4 (1977). At the time, Congress lamented that “[e]xtensions on, plans, new cases, and newly incurred debts put some debtors under court supervised repayment plans for seven to ten years.” Id. at 117. Congress went on to say that such lengthy repayment plans were “the closest thing there is to indentured servitude.” Id. Congress stated that “bankruptcy relief should be effective, and should provide the debtor with a fresh start.” Id. (emphasis added). Chapter 13 bankruptcy was intended to be helpful to debtors and creditors. Debtors are able to preserve existing assets if they complete a repayment plan under the supervision of a Chapter 13 trustee. Scott Et Al., 8 Collier on Bankruptcy 1300-12 (Lawrence P. King et al. eds., 15th ed. rev.2007). Creditor interests are promoted through recoveries from future income that are not available in Chapter 7 liquidation. Id. Congress updated the bankruptcy laws for the first time since 1978 with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (2005). At the law’s signing, President George W. Bush reiterated many of the purposes expressed by Congress in 1978: Our bankruptcy laws are an important part of the safety net of America. They give those who cannot pay their debts a fresh start .... Under the new law, Americans who have the ability to pay will be required to pay back at least a portion of their debts. Those who fall behind their state’s median income will not be required to pay back their debts.... The act of Congress I sign today will protect those who legitimately need help, stop those who try to commit fraud, and bring greater stability and fairness to our financial system. Press Release, White House Press Office, President Signs Bankruptcy Abuse Prevention, Consumer Protection Act (Apr. 20, 2005), reprinted in 2005 U.S.C.C.A.N. S7, 2005" }, { "docid": "6648996", "title": "", "text": "with this opinion. So ordered. . In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., - U.S. -, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), the Supreme Court held unconstitutional the assignment in 28 U.S.C. § 1471 (Supp. IV 1980) of broad jurisdiction to non-Article III bankruptcy judges. The ruling casts into doubt the entire statutory scheme of the 1978 Bankruptcy Reform Act. However, the Court stated: It is ... plain that retroactive application would not further the operation of our holding, and would surely visit substantial injustice and hardship upon those litigants who relied upon the Act’s vesting of jurisdiction in the bankruptcy courts. We hold, therefore, that our decision today shall apply only prospectively. Id - U.S. at -, 102 S.Ct. at 2880. (footnote omitted) We interpret this to mean the Northern Pipeline decision does not affect bankruptcy court decisions pending on appeal before June 28, 1982, the date of the Supreme Court opinion. The Court’s rationale of avoiding injustice and hardship applies with special force here, where the litigants have already borne the expense of two appeals (one to the District Court and one to this court) in addition to the bankruptcy proceeding. . The new Bankruptcy Code was created by the Bankruptcy Reform Act of 1978, Pub.L.No. 95-598, 92 Stat. 2549 (1978). The Code repealed the Bankruptcy Act of 1898, ch. 541, 30 Stat. 544 (1898), as amended by the Chandler Act, ch. 575, 52 Stat. 840 (1938). . Chandler Act, 52 Stat. 930, previously codified at 11 U.S.C. §§ 1001-86 (1976) (repealed 1978). Throughout, we refer to the wage earner’s provisions under the amended 1898 Act as “Chapter XIII” and to those provisions under the Bankruptcy Code as “Chapter 13.” . For a comprehensive discussion of the debate, see Cyr, The Chapter 13 “Good Faith” Tempest: An Analysis and Proposal for Change, 55 Am.Bankr.L.J. 271 (1981). . Courts have developed a variety of tests under section 1325(a)(3), requiring inter alia that the debtor make “substantial payments,” that the payments represent the debtor’s “best ef fort,” and others. See generally 5 Collier on Bankruptcy ¶" } ]

[ { "docid": "2898328", "title": "", "text": "PER CURIAM. Appellant was indicted on nine counts for violating the narcotics laws, 21 U.S. C. § 174 and 26 U.S.C. § 4705(a). Three separate instances of possession and sale were involved. At the close of the Government’s case three counts were dismissed on motion of the United States, and three on motion of the appellant. At the end of the jury trial appellant was convicted on the remaining three counts and sentenced to five year concurrent terms. 1. Appellant contends that the motion of acquittal should have been granted on two of the remaining counts, on grounds that the indictments were fatally defective in that they charged sale to a federal agent, while the proof offered was of sale to the informer. We disagree. Appellant concedes that she was not misled by the variance; nór do we regard the variance between indictment and proof as affecting substantial rights under Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Nor is there any possibility of double jeopardy, since the record as well as the indictment must be consulted should that issue arise in a future prosecution. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). 2. Appellant also contends that there was insufficient evidence of a sale to go to the jury. After reviewing the record we conclude that there was sufficient evidence to permit the jury to conclude beyond a reasonable doubt that appellant had sold the heroin. Moreover, in the absence of plain error, appellant waived challenge to the denial of the motion for acquittal by electing to go forward with proof. Benchwick v. United States, 297 F.2d 330, 335 (9th Cir. 1961). 3. Appellant asserts in effect that the United States prosecuted the three counts on which it later sought dismissal only to gain entry for evidence otherwise inadmissible. Her position is untenable. It does not appear that the United States was proceeding in bad faith; thus presentation of proof on those counts cannot be said to amount to misconduct. 4. Turner v. United States, 396" } ]

[ { "docid": "724086", "title": "", "text": "v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958) (privilege upheld on husband’s objection); 8 Wig-more, Evidence § 2241 (1961). Another privilege protects marital communications. It belongs to the communicating spouse, and likewise may be waived. Fraser v. United States (6 Cir.- 1944) 145 F.2d 139, 144, cert, den., 324 U.S. 849, 65 S.Ct. 684, 89 L.Ed. 1409 (1945); Peek, supra, 321 F.2d at 943. Appellant failed to object to his wife’s testimony as to his communications when it was offered. Fraser and Peek, supra, stand for the proposition that the communications privilege must be continuously asserted, or it is waived. Appellant’s argument that such objection would only have further prejudiced him is without merit. Further, there is no question that appellant’s wife was competent to give testimony favorable to him, insofar as her testimony might have appeared in that light. Funk v. United States, 290 U.S. 871, 54 S.Ct. 91, 78 L.Ed. 369 (1933). We note that appellant’s counsel made much use of the wife’s testimony in his closing arguments. The Sufficiency of the Evidence Appellant also complains that the District Judge erred in denying his motion for judgment of acquittal, made at the close of the Government’s ease and renewed after all the evidence. Upon denial of appellant’s motions to acquit and to sever, he claims he had no choice but to testify, believing that his wife would take the stand and incriminate him. Rule 29(a), Fed.R.Crim.P., requires a trial court on motion to order an acquittal “if the evidence is insufficient to sustain the conviction.” The test is whether at the time of the motion there was relevant evidence from which the jury could reasonably find appellant guilty beyond a reasonable doubt, viewing the evidence in light favorable to the Government. United States v. Nelson (9 Cir. 1969) 419 F.2d 1237, 1241-1245. The tests applied by the trial judge to the motion, and by a reviewing court to his ruling thereon, are substantially identical. Id. at 1241. If there appears some doubt, so that the court believes the jury might disagree, the motion" }, { "docid": "2348170", "title": "", "text": "say that a motion so made, followed by testimony for the defense, constitutes an abandonment of that motion. Benchwick v. United States, 9 Cir., 1961, 297 F.2d 330; Gaunt v. United States, 1 Cir., 1950, 184 F.2d 284, cert. denied, 1951, 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662. As to the latter motion, made at the conclusion of all the evidence, defendant asserts that there was insufficient evidence to justify a finding by the jury of criminal intent and conversion to defendant’s use. Our standard of review is that of determining whether the evidence viewed most favorably to the government and all reasonable inferences therefrom support the jury's verdict. United States v. Quagliato, 7 Cir., 1965, 343 F.2d 533, cert. denied, 381 U.S. 938, 85 S.Ct. 1771, 14 L.Ed.2d 702; Genstil v. United States, 1 Cir., 1964, 326 F.2d 243, cert. denied, 377 U.S. 916, 84 S.Ct. 1179, 12 L.Ed.2d 185. Using this standard, we cannot say the jury was irrational in its finding of guilt. The knowledge of the falsity of expense vouchers was admitted. Despite the parade of defendant’s witnesses attesting to the practice of falsity, the jury had heard the President, Secretary-Treasurer, and Comptroller of the union testify to their ignorance of such a prac tice and the lack of authority. While defendant and a number of other witnesses testified to defendant’s having spent money liberally for lunches, drinks, prescriptions, travel, and other union purposes, the jury could have disbelieved all. Or, believing much of this testimony, it could have believed there was a balance unaccounted for and willfully and wrongly converted to defendant’s own use. The jury might well have considered that witnesses had testified to a practice of falsity relating chiefly to liquor expense and have felt there was no good reason why defendant failed to obtain and forward receipts for food, travel, and other respectable items making up the largest part of his expenditures. It might have believed the union Secretary-Treasurer that defendant had no authority to bring his family to Puerto Rico. It might have drawn adverse conclusions from the destruction" }, { "docid": "23494602", "title": "", "text": "of the Government’s case, that the evidence was insufficient to support a verdict of guilty. That ground was also rejected by the District Judge in overruling the motions. Thereafter, the defendants offered evidence in their own behalf. At the conclusion of all the evidence the motions for judgment of acquittal were not renewed. On this appeal the appellants contend that this ruling of the District Judge was reversible error. It is the settled rule that if a defendant at the close of the Government’s case moves for judgment of acquittal on the ground that the evidence is insufficient to support a verdict of guilty, and after the motion is overruled, introduces evidence in his own behalf, he waives his objections to the denial of his motion for judgment of acquittal on that ground. United States v. Calderon, 348 U.S. 160, Note 1, page 164, 75 S.Ct. 186, 99 L.Ed. 202; Gendron v. United States, 295 F.2d 897, 900, C.A.8th; Lupo v. United States, 322 F.2d 569, 572-573, C.A.9th; Benchwick v. United States, 297 F.2d 330, 335, C.A.9th; Jasso v. United States, 290 F.2d 671, 673, C.A.5th, cert, denied, 368 U.S. 858, 82 S.Ct. 97, 7 L.Ed. 2d 55; Corbin v. United States, 253 F.2d 646, 647, C.A.10th; United States v. Aman, 210 F.2d 344, 345-346, C.A.7th; Clark v. United States, 293 F.2d 445, 448, C.A.5th. We recognize that under Rule 52 (b), Rules of Criminal Procedure, plain errors affecting substantial rights may be noticed even though they have not been brought to the attention of the Court. United States v. Cooper, 321 F. 2d 456, 457, C.A.6th. The Court in Corbin v. United States, supra, 253 F.2d 646, C.A.10th, said at page 648 in recognizing this exception, “This is an exceptional power to be sparingly used.” See also: Armstrong v. United States, 65 F.2d 853, 856, C.A.10th. In keeping with that rule we have considered appellants’ contention and have concluded that it should be denied. The Government’s evidence shows very strongly the existence of the conspiracy on the part of Mrs. Niedomski, Maison and Pinciotti. The income tax investigation of" }, { "docid": "21484164", "title": "", "text": "portion thereof, concerning-which, the first allegation of error is concerned with — the insufficiency of the evidence to warrant a conviction. However, as has been indicated, the-only motion for judgment of acquittal' was made by the appellant at the close-of the Government’s case, which was denied, though it is to be remembered that-this is an information and, unlike an indictment — which cannot be altered except by a Grand Jury — it could have been-amended at any time by the United States-Attorney to meet the objections which the defendant now alleges to be error by reason of a variation between the allegata and the probata. Having proceeded, therefore, to put on evidence by way of defense, appellant waived his motion for judgment of acquittal. United States v. Calderon, 348 U.S. 160, 164, n. 1, 75 S.Ct. 186, 99 L.Ed. 202 (1954); United States v. Kenny, 236 F.2d 128 (C.A.3, 1956), cert. den. 352 U.S. 894, 77 S.Ct. 133, 1 L.Ed.2d 87; Lii v. United States, 9 Cir., 198 F.2d 109; Gaunt v. United States, 1 Cir., 184 F.2d 284. Never having renewed his motion for judgment of acquittal nor having excepted to the trial court’s charge on the grounds; of insufficiency of the evidence, he has-failed to preserve his right to question the sufficiency of the evidence to support \"the charges in the information. Lucas v. United States, 9 Cir., 325 F.2d 867 (1963); Edwards v. United States, 8 Cir., 333 F.2d 588 (C.A.8, 1964); Gendron v. United States, 295 F.2d 897 (C.A. 8, 1961); United States v. Ginsburg, 224 F.Supp. 129, 132 (E.D.Pa., 1963). The lower court, in its opinion, goes ■only into the appellant’s request for a new trial, which was denied, and no mention is made of a motion for judgment •of acquittal — although appellant erroneously included it as one of the grounds in his motion for a new trial — for the ■obvious reason that it was not before the •court. Our next inquiry is to determine whether, upon a review of the entire record, the trial court, in order to prevent a miscarriage of" }, { "docid": "22885865", "title": "", "text": "denial of this motion, citing Frankln v. United States, 117 U.S.App.D.C. 331, 330 F.2d 205, 208 (1964), which rests upon Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963). These cases hold the waiver doctrine inapplicable where the inculpating testimony is that of a co-defendant. This circuit has followed the waiver rule generally, see decisions from this and other circuits cited with approval in United States v. Calderon, 348 U.S. 160, 164 n. 1, 75 S.Ct. 186, 99 L.Ed. 202 (1954); see also Benchwick v. United States, 297 F.2d 330, 335 (9th Cir. 1961); Maulding v. United States, 257 F.2d 56, 58, 17 Alaska 592 (9th Cir. 1958). Since we do not rely upon Verdugo’s testimony, we need not consider the exception suggested in Franklin and Cephus. . The instruction, taken from Mathes & Devitt, Federal Jury Practice & Instructions, § 39.07 (1965), reads: Although the verb “conceal” ordinarily means to hide or keep from sight or view, the expression as used in the statute and the indictment here carries a broader meaning. The law imposes an internal revenue tax upon all legitimate narcotic drugs and provides that revenue stamps evidencing payment of the tax “shall be so affixed to the bottle or other container as to securely seal the stopper, covering, or wrapper thereof.” It is unlawful “for any person to purchase, .sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; the absence of appropriate tax-paid stamps from narcotic drugs is prima facie evidence of violation of law by the person in whose possession the same may be found,” unless the person possessing the narcotic drugs has obtained them from a registered dealer, such as a pharmacist, upon prescription issued for legitimate medical uses by a physician or other registered and licensed person. Since the law imposes upon every person possessing a narcotic drug (other than upon legitimate medical prescription) the affirmative duty to keep the narcotic drug in a container bearing revenue stamps evidencing payment of the tax, the wilful failure of a person who is in" }, { "docid": "376195", "title": "", "text": "no reasonable doubt * * * is fairly possible, he must let the jury decide the matter.” Moreover, appellant’s failure to move for acquittal at the close of the case bars his right to review of the motion for judgment after the verdict. Of course this principle would not restrain us from rectifying manifest error or serious injustice. ****Such matters are not revealed by the present record. Denial of a motion for a new trial will not be disturbed on appeal unless the trial court abused its discretion. Clearly it did not in this case. The judgment is therefore Affirmed. . 81 U.S.App.D.C. 389, 392-393, 160 F.2d 229, 232-233, certiorari denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850, rehearing denied 1917, 331 U.S. 869, 67 S.Ct. 1729, 91 L.Ed. 1872. . Appellant did move for a directed verdict when the Government rested its case, but, following denial and the introduction of evidence in his behalf, failed to renew Ms motion at the close of all the evidence. Mosca v. United States, 9 Cir., 1949, 174 F.2d 448, 451, and cases cited in footnote 10 therein; Hall v. United States, 83 U.S.App.D.C. 166, 169, 168 F.2d 161, 164, 4 A.L.R.2d 1193, certiorari denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775, rehearing denied 1918, 335 U.S. 839, 69 S.Ct. 9, 93 L.Ed. 391; Cratty v. United States, 1947, 82 U.S.App.D.C. 236, 243, 163 F.2d 844, 851; Ansley v. United States, 5 Cir., 1943, 135 F.2d 207. . See Lockhart v. United States, 4 Cir., 1950, 183 F.2d 265; Molina v. United States, 5 Cir.1947, 162 F.2d 198; and Rule 52(b) of the Federal Rules of Criminal Procedure, 38 U.S.O.A. which I>rovides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” . Benton v. United States, 1951, 88 U.S.App.D.C. 158, 160, 188 F.2d 625, 627; Burnett v. United States, 1947, 82 U.S.App.D.C. 360, 362, 164 F.2d 103, 105, and eases cited therein; and see Hall v. United States, 1948, 84 U.S.App.D.C. 209, 212, 171 F.2d 347, 350." }, { "docid": "18443804", "title": "", "text": "at trial to present evidence on their own behalf, and we are therefore permitted to examine the record as a whole. See McGautha v. California, 402 U.S. 183, 215-216, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972); United States v. Greene, 442 F.2d 1285, 1286-1287 n. 3 (10th Cir. 1971); United States v. Feldman, 425 F.2d 688, 692 (3rd Cir. 1970); United States v. Cashio, 420 F.2d 1132, 1134 (5th Cir. 1969), cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); Viramontes-Medina v. United States, 411 F.2d 981, 982 (9th Cir. 1969); Cline v. United States, 395 F.2d 138, 144 (8th Cir. 1968); United States v. Carabbia, 381 F.2d 133, 138 (6th Cir.), cert. denied, 389 U.S. 1007, 88 S.Ct. 564, 19 L.Ed.2d 602 (1967); United States v. Haskell, 327 F.2d 281, 282 n. 2 (2d Cir.), cert. denied, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964). But see Maffei v. United States, 406 U.S. 938, 92 S.Ct. 1789, 32 L.Ed.2d 138 (1972) (Douglas, J., dissenting from denial of certiorari); United States v. Rizzo, 416 F.2d 734, 736 n. 3 (7th Cir. 1969); Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893, 897-898 (1963). At trial, appellant Robert Silas Moore testified on cross-examination as follows: Q. But at the time you left for South Dakota did you know what was in the back of the van? A. The first time I left? Q. Yes. A. I knew that he had business to take care of in South Dakota. Q. And you had this van loaded down with a ton of Atrazine but you didn’t know it was in there? A. I didn’t say I didn’t know there was Aatrex in there because I did. Q. You did know? A. I didn’t know how much, no. Q. But you did know there was Aatrex Atrazine in the van? A. Yes. Q. When you left for South Dakota. A. Yes. Similarly, another co-defendant in the case below who is not a party to" }, { "docid": "22855617", "title": "", "text": "recognizance. . See Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850, rehearing denied, 331 U.S. 869, 870, 67 S.Ct. 1729, 91 L.Ed. 1872 (1947). . Hall v. United States, 83 U.S.App.D.C. 166, 168 E.2d 161, 4 A.L.R.2d 1193, cert. denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775, rehearing denied, 335 U.S. 839, 840, 69 S.Ct. 9, 93 L.Ed. 391 (1948); Ladrey v. United States, 81 U.S.App.D.C. 127, 155 F.2d 417, cert. denied, 329 U.S. 723, 67 S.Ct. 68, 91 L.Ed. 627 (1946). . See also Report of the Attorney General’s Committee on Poverty and the Administration of Justice 10 (1963). . The denial is neither a final decision appealable under 28 U.S.C. § 1291 (1958), nor, of course, an interlocutory decision appealable under 28 U.S.C. § 1292 (1958). . We read the Government’s concession and the Supreme Court’s decision in Hemphill v. United States, 312 U.S. 657, 61 S.Ct. 729, 85 L.Ed. 1106 (1941) (per curiam), and Rule 52(b), F.R.Crim.P., as repudiating the notion that renewal of the motion at the end of the case is necessary to gain appellate review of the suf ficiency of the evidence. Onr references to “waiver” in this opinion exclude this notion. . See United States v. Goldstein, 168 F.2d 666, 669-670 (2d Cir. 1948). . See Leyer v. United States, 183 F. 102, 104 (2d Cir. 1910). . See The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151, 1153 & n. 17 (1961). . See generally The Motion for Acquittal: A Neglected Safeguard, supra note 10. . State v. Bacheller, 89 N.J.L. 433, 436, 98 A. 829, 830 (N.J.Sup.Ct.1916). . See The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151, 1152 & n. 9 (1961) (citing cases); Mosca v. United States, 174 F.2d 448 (9th Cir. 1949); Harris v. United States, 285 F.2d 85 (5th Cir. 1960), cert. denied, 368 U.S. 820, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961); Gaunt v. United States, 184 F.2d 284 (1st Cir. 1950), cert. denied, 340 U.S. 917," }, { "docid": "724089", "title": "", "text": "do consider all of the evidence, including that presented by appellant. Gaunt v. United States (1 Cir. 1950) 184 F.2d 284, 290, cert. den., 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662 (1951); Mosca v. United States (9 Cir. 1949) 174 F.2d 448, 450-51. We find no plain error in the denial of the motion. United States v. Lewis (9 Cir. 1970) 426 F.2d 266 (per curiam). It is true that the District of Columbia Circuit, alone, has held this general waiver doctrine inapplicable where a defendant responds to damaging testimony given by a co-defendant. Cephus v. United States (1963) 117 U.S.App.D.C. 15, 324 F.2d 893, 897-898, and its progeny. But, in our case, appellant testified before his co-defendant. Since, at the close of his testimony, there was sufficient evidence in the record of appellant’s guilt, we have no hesitancy in affirming the denial of the motion made at the conclusion of the case — even were we not to rely on his wife’s testimony. However, in so stating, we do not depart from our rule in Mosca, supra, that in such circumstances all of the evidence received at trial is germane. In addition, although our Circuit has noted the Cephus case, we adhere to the general waiver rule. Verdugo v. United States (9 Cir. 1968) 402 F.2d 599, 604 n.4, cert. den., 402 U.S. 961, 91 S.Ct. 1623, 29 L.Ed.2d 124 (1971). Explicit post-Cephus statements of the Supreme Court foster and reaffirm our view. McGautha v. California, 402 U.S. 183, 215-216, 91 S.Ct. 1454, 28 L.Ed. 2d 711 (1971). See also United States v. Calderon, 348 U.S. 160, 164 n. 1, 75 S.Ct. 186, 99 L.Ed. 202 (1954), rev’g 207 F.2d 377 (9 Cir. 1953). Appellant could have rested on his motion instead of testifying. It is neither unusual nor persuasive that appellant has necessarily made one of those hard choices which often confront litigants in the course of trial. Benchwick, supra, 297 F.2d at 335-336. Requiring such choices is not unconstitutional. McGautha, supra, 402 U.S. at 213, 91 S.Ct. 1454. We have carefully considered appellant’s other contentions" }, { "docid": "724084", "title": "", "text": "S.Ct. 1620, 20 L.Ed.2d 476 (1968). Moreover, his wife, the co-defendant, testified and was subject to cross-examination. Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); Mendez v. United States (9 Cir. 1970) 429 F.2d 124. On a showing of prejudice, a trial court in its discretion may grant separate trials. Fed.R.Crim.P., Rule 14. The trial judge’s decision will not be reversed absent a clear abuse of discretion. Parker v. United States (9 Cir. 1968), 404 F.2d 1193, 1194, 1196, cert. den., 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969); Baker v. United States (9 Cir. 1968) 393 F.2d 604, 607, cert. den., 393 U.S. 836, 89 S.Ct. 110, 21 L.Ed.2d 106. The mere joint trial of husband and wife does not require severance where, as here, the Government did not introduce the statements of one to incriminate the other. See Peek v. United States (9 Cir. 1963) 321 F.2d 934, 942-943, cert. den., 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973 (1964). Since appellant did not renew his motion for a severance, based on prejudice, at the close of all the evidence, his right to complain of denial of the motion was waived. Williamson v. United States (9 Cir. 1962) 310 F.2d 192, 197; United States v. Burnley (9 Cir. 1971); 452 F.2d 1133. Moreover, appellant did not avail himself of the trial judge’s offer to give a limiting instruction on request. See Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). We conclude that there was no prejudice from denial of the motions to sever, which, however, were waived because not renewed at the close of all the evidence. The Marital Privilege Appellant’s claims that his wife’s testimony should have been excluded on grounds of privilege are not well taken. There is a privilege which prevents one spouse from testifying adversely to the other, but it may be waived where, as here, neither spouse raises the privilege when the testimony is offered. Olender v. United States (9 Cir. 1954) 210 F.2d 795, 800. See Hawkins" }, { "docid": "12326507", "title": "", "text": "to support the verdict. See United States v. Jackson, 5 Cir. 1971, 444 F.2d 1389. The Government also argues that Zarzabal waived appellate consideration of the denial of his motion for acquittal when his codefendant, Arias, testified and supplied deficiencies in the Government’s case. Arias took the stand and attempted to raise a defense that he had no knowledge that the packages contained marijuana. During his testimony he mentioned that about 1 a. m. on January 10, 1973, he rented a room at the Holiday Inn in Leesburg, Florida, for Zarzabal and himself. It is problematical whether this testimony added enough to the nascent case against Zarzabal to permit it to go to the jury. In any event, we cannot accept Arias’s testimony as representing Zarzabal’s waiver of consideration of the motion for acquittal. The rule is well-recognized in this circuit that a defendant who testifies himself and supplies deficiencies in the Government’s case waives appellate review of a denial of his motion for judgment of acquittal at the close of the Government’s case. See United States v. Jackson, supra, 444 F.2d at 1389; United States v. Rawls, 5 Cir. 1970, 421 F.2d 1285. We adhere to it. But that doctrine should not be extended to imply waiver when a codefendant testifies. See Cephus v. United States, 1963, 117 U.S.App.D.C. 15, 324 F.2d 893, 897. III. The appellants argue that through the activities of Ortiz, the informer, the Government’s role was so integral a part of the criminal enterprise as to be repugnant to the criminal justice system and deprive the appellants of due process. They are careful not to couch this argument as entrapment. The theory, once increasingly relied on by defendants, that entrapment exists as a matter of law when there is “an intolerable degree of governmental participation in the criminal enterprise” was cut short by the 1973 Supreme Court decision United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. In Russell the Court reaffirmed the classic predisposition test for entrapment: “It is only when the government’s deception actually implants the criminal design in" }, { "docid": "2348169", "title": "", "text": "day trial involving 27 witnesses did not prejudice defendant. The court was careful to admonish the jury to rely on its own impressions of the evidence. Defendant, at the outset of trial and at the conclusion of the government’s case, made a motion that the government be required to elect the offense it would seek to prove. This motion proceeded on the erroneous assumption that several crimes were involved. We have already stated our opinion based on Senate and House Reports, that one new statutory crime was charged, the commission of which could be accomplished by various means. There was no reason for the government to be forced to elect. See Woxberg v. United States, supra, 329 F.2d at 290; cf. United States v. Harmon, 6 Cir., 1964, 339 F.2d 354, 357-358, cert. denied, 1965, 380 U.S. 944, 85 S.Ct. 1025, 13 L.Ed.2d 963. At the conclusion of the government’s case and again at the conclusion of all the testimony, defendant moved for a judgment of acquittal. As to the former it is sufficient to say that a motion so made, followed by testimony for the defense, constitutes an abandonment of that motion. Benchwick v. United States, 9 Cir., 1961, 297 F.2d 330; Gaunt v. United States, 1 Cir., 1950, 184 F.2d 284, cert. denied, 1951, 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662. As to the latter motion, made at the conclusion of all the evidence, defendant asserts that there was insufficient evidence to justify a finding by the jury of criminal intent and conversion to defendant’s use. Our standard of review is that of determining whether the evidence viewed most favorably to the government and all reasonable inferences therefrom support the jury's verdict. United States v. Quagliato, 7 Cir., 1965, 343 F.2d 533, cert. denied, 381 U.S. 938, 85 S.Ct. 1771, 14 L.Ed.2d 702; Genstil v. United States, 1 Cir., 1964, 326 F.2d 243, cert. denied, 377 U.S. 916, 84 S.Ct. 1179, 12 L.Ed.2d 185. Using this standard, we cannot say the jury was irrational in its finding of guilt. The knowledge of the falsity of expense" }, { "docid": "724088", "title": "", "text": "must be denied. United States v. Scott (9 Cir. 1971) 452 F.2d 660 (per curiam). Assuming we were required to review only the evidence as it stood at the close of the Government’s case, which we do not here decide, we could not disagree with the District Judge. In denying appellant’s first motion, he said that the pattern of the evidence implicating appellant was “simply too good to be true. I think that the jury could, . I don’t know that they would, but could reasonably find beyond a reasonable doubt that this was a joint venture.” Appellant would have been in a better position had he rested at the close of the Government’s case. Appellant waived his objections to denial of his first motion for acquittal, by proceeding to introduce evidence in his behalf. Benchwick v. United States (9 Cir. 1961) 297 F.2d 330, 335; United States v. Haskell (2 Cir. 1964) 327 F.2d 281, 282 n.2, cert. den., 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307. On review, we therefore can and do consider all of the evidence, including that presented by appellant. Gaunt v. United States (1 Cir. 1950) 184 F.2d 284, 290, cert. den., 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662 (1951); Mosca v. United States (9 Cir. 1949) 174 F.2d 448, 450-51. We find no plain error in the denial of the motion. United States v. Lewis (9 Cir. 1970) 426 F.2d 266 (per curiam). It is true that the District of Columbia Circuit, alone, has held this general waiver doctrine inapplicable where a defendant responds to damaging testimony given by a co-defendant. Cephus v. United States (1963) 117 U.S.App.D.C. 15, 324 F.2d 893, 897-898, and its progeny. But, in our case, appellant testified before his co-defendant. Since, at the close of his testimony, there was sufficient evidence in the record of appellant’s guilt, we have no hesitancy in affirming the denial of the motion made at the conclusion of the case — even were we not to rely on his wife’s testimony. However, in so stating, we do not depart from" }, { "docid": "724087", "title": "", "text": "The Sufficiency of the Evidence Appellant also complains that the District Judge erred in denying his motion for judgment of acquittal, made at the close of the Government’s ease and renewed after all the evidence. Upon denial of appellant’s motions to acquit and to sever, he claims he had no choice but to testify, believing that his wife would take the stand and incriminate him. Rule 29(a), Fed.R.Crim.P., requires a trial court on motion to order an acquittal “if the evidence is insufficient to sustain the conviction.” The test is whether at the time of the motion there was relevant evidence from which the jury could reasonably find appellant guilty beyond a reasonable doubt, viewing the evidence in light favorable to the Government. United States v. Nelson (9 Cir. 1969) 419 F.2d 1237, 1241-1245. The tests applied by the trial judge to the motion, and by a reviewing court to his ruling thereon, are substantially identical. Id. at 1241. If there appears some doubt, so that the court believes the jury might disagree, the motion must be denied. United States v. Scott (9 Cir. 1971) 452 F.2d 660 (per curiam). Assuming we were required to review only the evidence as it stood at the close of the Government’s case, which we do not here decide, we could not disagree with the District Judge. In denying appellant’s first motion, he said that the pattern of the evidence implicating appellant was “simply too good to be true. I think that the jury could, . I don’t know that they would, but could reasonably find beyond a reasonable doubt that this was a joint venture.” Appellant would have been in a better position had he rested at the close of the Government’s case. Appellant waived his objections to denial of his first motion for acquittal, by proceeding to introduce evidence in his behalf. Benchwick v. United States (9 Cir. 1961) 297 F.2d 330, 335; United States v. Haskell (2 Cir. 1964) 327 F.2d 281, 282 n.2, cert. den., 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307. On review, we therefore can and" }, { "docid": "724085", "title": "", "text": "his motion for a severance, based on prejudice, at the close of all the evidence, his right to complain of denial of the motion was waived. Williamson v. United States (9 Cir. 1962) 310 F.2d 192, 197; United States v. Burnley (9 Cir. 1971); 452 F.2d 1133. Moreover, appellant did not avail himself of the trial judge’s offer to give a limiting instruction on request. See Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). We conclude that there was no prejudice from denial of the motions to sever, which, however, were waived because not renewed at the close of all the evidence. The Marital Privilege Appellant’s claims that his wife’s testimony should have been excluded on grounds of privilege are not well taken. There is a privilege which prevents one spouse from testifying adversely to the other, but it may be waived where, as here, neither spouse raises the privilege when the testimony is offered. Olender v. United States (9 Cir. 1954) 210 F.2d 795, 800. See Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958) (privilege upheld on husband’s objection); 8 Wig-more, Evidence § 2241 (1961). Another privilege protects marital communications. It belongs to the communicating spouse, and likewise may be waived. Fraser v. United States (6 Cir.- 1944) 145 F.2d 139, 144, cert, den., 324 U.S. 849, 65 S.Ct. 684, 89 L.Ed. 1409 (1945); Peek, supra, 321 F.2d at 943. Appellant failed to object to his wife’s testimony as to his communications when it was offered. Fraser and Peek, supra, stand for the proposition that the communications privilege must be continuously asserted, or it is waived. Appellant’s argument that such objection would only have further prejudiced him is without merit. Further, there is no question that appellant’s wife was competent to give testimony favorable to him, insofar as her testimony might have appeared in that light. Funk v. United States, 290 U.S. 871, 54 S.Ct. 91, 78 L.Ed. 369 (1933). We note that appellant’s counsel made much use of the wife’s testimony in his closing arguments." }, { "docid": "22855618", "title": "", "text": "as repudiating the notion that renewal of the motion at the end of the case is necessary to gain appellate review of the suf ficiency of the evidence. Onr references to “waiver” in this opinion exclude this notion. . See United States v. Goldstein, 168 F.2d 666, 669-670 (2d Cir. 1948). . See Leyer v. United States, 183 F. 102, 104 (2d Cir. 1910). . See The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151, 1153 & n. 17 (1961). . See generally The Motion for Acquittal: A Neglected Safeguard, supra note 10. . State v. Bacheller, 89 N.J.L. 433, 436, 98 A. 829, 830 (N.J.Sup.Ct.1916). . See The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151, 1152 & n. 9 (1961) (citing cases); Mosca v. United States, 174 F.2d 448 (9th Cir. 1949); Harris v. United States, 285 F.2d 85 (5th Cir. 1960), cert. denied, 368 U.S. 820, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961); Gaunt v. United States, 184 F.2d 284 (1st Cir. 1950), cert. denied, 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662, rehcaring denied, 340 U.S. 939, 71 S.Ct. 488, 95 L.Ed. 678 (1951). . United States v. Calderon, 348 U.S. 160. 164 n. 1, 75 S.Ct. 186, 99 L.Ed. 202 (1954). . See, e. g., Leyer v. United States, 183 F. 102, 104 (2d Cir. 1910): “We see no reason to repudiate this [civil] rule in criminal causes.” Burton v. United States, 142 F. 57, 59-60 (8th Cir. 1906): “This rule is uniformly applied in civil cases [citing five civil cases]. And no reason is perceived why it is not equally applicable to criminal cases.” In this Circuit the criminal waiver cases trace to Perovich v. United States, 205 U.S. 86, 27 S.Ct. 456, 51 L.Ed. 722 (1907), where the Supreme Court merely said: “Without resting upon the proposition that introducing testimony after such a motion has been overruled is a waiver of any exception to the action of the court [citing civil cases], we are of the opinion that neither at that time nor at the close of all" }, { "docid": "17914220", "title": "", "text": "acquittal was denied as to Count 9 and the jury returned a verdict of guilty on the count on April 3, 1972. On May 4, 1972, the court granted the motion for judgment of acquittal, as it had a right to do under Rule 29, Fed.R.Crim.P. Frank Paul Castro was not sentenced on Count 9. Appellant cannot now complain of the earlier denial of the motion when, in fact, the court later granted the motion. Appellant Frank Paul Castro contends that allowing the jury to consider Count 9 emphasized the extent of his involvement in criminal activity. We find no error, but if there was, it was harmless error in view of the overwhelming evidence of Castro’s guilt on the other counts. II. Nena Castro Nena Castro expressly concedes the sufficiency of the evidence as to Count 1, the conspiracy count. She contends the evidence was insufficient to convict her as an aider and abetter under Counts 4, 5,11 and 12. Since the sentences on all five counts ran concurrently, we need not examine the validity of the convictions on Counts 4, 5, 11 and 12. Hirabayashi v. United States, 320 U.S. 81, 105, 63 S. Ct. 1375, 87 L.Ed. 1774 (1943); Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Gonzales v. United States (9 Cir. 1972), 461 F.2d 1000, 1001 (per curiam); cert. den., 409 U.S. 914, 93 S.Ct. 230, 34 L.Ed.2d 175. However, we have reviewed the evidence as to Counts 4, 5, 11 and 12 and find it sufficient. She engaged in activity seeking to make the proposed illegal sale of the immigration documents successful. Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949); United States v. Manna (2 Cir. 1965), 353 F.2d 191, cert. den., 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685 (1966). The testimony of an accomplice, here Concha Castrellon, if believed by the jury, is sufficient to support a conviction. Bible v. United States (9 Cir. 1963), 314 F.2d 106, cert. den., 375 U.S. 862, 84 S.Ct." }, { "docid": "1911639", "title": "", "text": "review all the evidence and all the reasonable inferences that are to be drawn therefrom, in a light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Amaro, 422 F.2d 1078, 1081 (9th Cir. 1970). Dr. Larson made a motion for judgment of acquittal at the end of the government’s case in chief, but failed to renew the motion at the end of all the evidence. Such an unrenewed motion is waived and any error in the denial of the motion is waived by the introduction of the accused’s evidence. Benchwick v. United States, 297 F.2d 330 (9th Cir. 1961). Appellant now urges us to consider his insufficiency argument in light of the “plain error” rule. Rule 52(b) F.R.Crim.P.; See Reisman v. United States, 409 F.2d 789 (9th Cir. 1969). In the absence of “plain error” appellant can not now challenge the denial of the motion for acquittal. United States v. Lewis, 426 F.2d 266 (9th Cir. 1970). The “plain error” of Rule 52(b) is invoked only in exceptional situations, “ . . . situations wherein it appears to be necessary in order to prevent miscarriage of justice or to preserve the integrity and reputation of the judicial process.” Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969). In reviewing the record we do not find that such an exceptional situation existed here requiring us to find the denial of the motion of acquittal represented “plain error” by the trial judge. Appellant argues that the government was required to present expert testimony to carry its burden of proof. We do not find that expert testimony was required under the facts of this case. In United States v. Bartee, 479 F.2d 484 (10th Cir. 1973), which also concerned the prosecution of a doctor for illegally dispensing controlled substances, the expert testimony was contradictory, but the court to some degree minimized the expert testimony by stating: “Expert testimony from medical practitioners is of course admissible as bearing on the issue as to whether a doctor in" }, { "docid": "22885864", "title": "", "text": "Erwing v. United States, 323 F.2d 674 (9th Cir. 1963). Llanes, as well as Chavez v. United States, 343 F.2d 85, 90 (9th Cir. 1965), and Griego v. United States, 298 F.2d 845, 848 (10th Cir. 1962), hold that testimony that the defendant did not know that the drugs found in his possession were illegally imported requires submission of the issue of knowledge of unlawful importation to the jury for determination under the standard of reasonable doubt. Cf. United States v. Christmann, 298 F.2d 651, 653 (2d Cir. 1962), which holds that the defendant’s testimony that she thought the package which she illegally imported contained “essence of perfume” rather than heroin, made satisfaction of the requirement that the physical act specified in the statute be done “knowingly” an issue of fact for the jury. . Turner points out that he moved for judgment of acquittal under rule 29(a), Fed.R.Crim.P., at the close of the government’s case, and contends that testimony subsequently introduced as part of his own case should not be considered in reviewing the denial of this motion, citing Frankln v. United States, 117 U.S.App.D.C. 331, 330 F.2d 205, 208 (1964), which rests upon Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963). These cases hold the waiver doctrine inapplicable where the inculpating testimony is that of a co-defendant. This circuit has followed the waiver rule generally, see decisions from this and other circuits cited with approval in United States v. Calderon, 348 U.S. 160, 164 n. 1, 75 S.Ct. 186, 99 L.Ed. 202 (1954); see also Benchwick v. United States, 297 F.2d 330, 335 (9th Cir. 1961); Maulding v. United States, 257 F.2d 56, 58, 17 Alaska 592 (9th Cir. 1958). Since we do not rely upon Verdugo’s testimony, we need not consider the exception suggested in Franklin and Cephus. . The instruction, taken from Mathes & Devitt, Federal Jury Practice & Instructions, § 39.07 (1965), reads: Although the verb “conceal” ordinarily means to hide or keep from sight or view, the expression as used in the statute and the indictment here carries a broader meaning." }, { "docid": "724090", "title": "", "text": "our rule in Mosca, supra, that in such circumstances all of the evidence received at trial is germane. In addition, although our Circuit has noted the Cephus case, we adhere to the general waiver rule. Verdugo v. United States (9 Cir. 1968) 402 F.2d 599, 604 n.4, cert. den., 402 U.S. 961, 91 S.Ct. 1623, 29 L.Ed.2d 124 (1971). Explicit post-Cephus statements of the Supreme Court foster and reaffirm our view. McGautha v. California, 402 U.S. 183, 215-216, 91 S.Ct. 1454, 28 L.Ed. 2d 711 (1971). See also United States v. Calderon, 348 U.S. 160, 164 n. 1, 75 S.Ct. 186, 99 L.Ed. 202 (1954), rev’g 207 F.2d 377 (9 Cir. 1953). Appellant could have rested on his motion instead of testifying. It is neither unusual nor persuasive that appellant has necessarily made one of those hard choices which often confront litigants in the course of trial. Benchwick, supra, 297 F.2d at 335-336. Requiring such choices is not unconstitutional. McGautha, supra, 402 U.S. at 213, 91 S.Ct. 1454. We have carefully considered appellant’s other contentions and we find them to be without merit. The judgment is affirmed." } ]

[ { "docid": "19642852", "title": "", "text": "the statutory minimum of 15 years' imprisonment under ACCA, based on his prior felony convictions for robbery, attempted robbery, and illegal possession of a sawed-off shotgun. B ACCA provides a mandatory minimum sentence for certain violations of § 922(g), which prohibits the shipment, transportation, or possession of firearms or ammunition by convicted felons, persons previously committed to a mental institution, and certain others. Federal law normally provides a maximum sentence of 10 years' imprisonment for such crimes. See § 924(a)(2). Under ACCA, however, if a defendant convicted under § 922(g)has three prior convictions \"for a violent felony or a serious drug offense,\" the sentencing court must impose a sentence of at least 15 years' imprisonment. § 924(e)(1). ACCA's definition of a \"violent felony\" has three parts. First, a felony qualifies if it \"has as an element the use, attempted use, or threatened use of physical force against the person of another.\" § 924(e)(2)(B)(i). Second, the Act specifically names four categories of qualifying felonies: burglary, arson, extortion, and offenses involving the use of explosives. See § 924(e)(2)(B)(ii). Third, the Act contains what we have called a \"residual clause,\" which reaches any felony that \"otherwise involves conduct that presents a serious potential risk of physical injury to another.\" Ibid. The present case concerns the residual clause. The sole question raised in Johnson's certiorari petition was whether possession of a sawed-off shotgun under Minnesota law qualifies as a violent felony under that clause. Although Johnson argued in the lower courts that the residual clause is unconstitutionally vague, he did not renew that argument here. Nevertheless, after oral argument, the Court raised the question of vagueness on its own. The Court now holds that the residual clause is unconstitutionally vague in all its applications. I cannot agree. II I begin with stare decisis. Eight years ago in James v. United States,550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), Justice SCALIA, the author of today's opinion for the Court, fired an opening shot at the residual clause. In dissent, he suggested that the residual clause is void for vagueness. Id., at 230, 127" } ]

[ { "docid": "7187173", "title": "", "text": "of a person who violates section 922(g) of this title and has three previous convictions for a violent felony or a serious drug offense, or both ... such person ... shall be imprisoned not less than fifteen years.... ”). Eason has a prior 2006 conviction for delivery of cocaine, which he does not contest qualifies as a serious drug offense for purposes of the ACCA. We now must determine whether he has two additional qualifying prior convictions such that he was properly sentenced pursuant to the ACCA. “We review de novo whether a prior conviction is a predicate offense under the ACCA.” United States v. Shockley, 816 F.3d 1058, 1062 (8th Cir. 2016) (quoting United States v. Humphrey, 759 F.3d 909, 911 (8th Cir. 2014)). At sentencing, Eason made a general objection to use of the residual clause of the ACCA, arguing it was unconstitutionally vague and could not be applied to determine whether his prior convictions qualified for purposes of the enhancement. Eason did not specifically object to any particular conviction or make any additional argument to the district court. The district court overruled the objection, without ruling on whether the two additional convictions qualified under the residual clause, the force clause, or both. While this appeal, was pending, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague. See Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). Because Eason’s prior convictions can no longer qualify as predicate offenses under the residual clause, the only remaining question is whether any of his prior felonies can qualify as predicate offenses under the ACCA’s force clause. The force clause of the ACCA applies to felony offenses that include “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). “Physical force ‘means violent force — that is, force capable of causing physical pain or injury to another person.’ ” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (quoting Johnson v. United States, 559 U.S. 133, 140," }, { "docid": "22456438", "title": "", "text": "stop on the ground that he was not advised of his Miranda rights. The district court again denied Gardner’s motion, as well as his motion for judgment of acquittal. The jury found Gardner guilty of the offense charged, and the district court later denied Gardner’s motion for a new trial. At sentencing, Gardner challenged his classification as an armed career criminal. He argued that his predicate convictions for North Carolina common law robbery did not qualify categorically as violent felonies. The district court disagreed, concluding that the convictions qualified as violent felonies under the residual clause of the Armed Career Criminal Act (the ACCA). See 18 U.S.C. § 924(e)(2)(B). The court sentenced Gardner to serve a term of 262 months’ imprisonment, which sentence fell at the bottom of the Sentencing Guidelines range. This appeal followed. II. Gardner raises several issues on appeal, but primarily challenges the legality of the search of his vehicle and his classification as an armed career criminal. We first address the legality of the search. A. Gardner argues that the police officers lacked reasonable suspicion to initiate a stop of his vehicle. He contends that the confidential informant was not a reliable source of information, and that she did not provide sufficient detail about Gardner such as predictive information regarding his criminal behavior. Alternatively, Gardner asserts that even if the initial stop was lawful, the stop evolved into an unlawful arrest, and he should have been given Miranda warnings before any questioning occurred. Thus, Gardner challenges as inadmissible the statements he made after the stop and also seeks to suppress the gun uncovered from his vehicle. We disagree with Gardner’s arguments. We review a district court’s factual findings in deciding a motion to suppress for clear error, and the court’s legal conclusions de novo. United States v. Black, 707 F.3d 531, 537 (4th Cir.2013). We construe the evidence in the light most favorable to the government, the prevailing party in the district court. United States v. Farrior, 535 F.3d 210, 217 (4th Cir.2008), abrogated on other grounds by United States v. Williams, 808 F.3d 238 (4th" }, { "docid": "16142730", "title": "", "text": "the ACCA because he no longer has three qualifying predicate offenses. II. DISCUSSION We may authorize the filing of a second or successive § 2255 motion when the applicant makes a prima facie showing that his proposed claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). Pertinent to Sargent’s motion, the Supreme Court has declared, in the context of the ACCA, that the rule announced in Johnson has retroactive effect to cases on collateral review. Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). This means that petitioners, like Sargent, who were sentenced pre-Johnson can apply Johnson's holding to attack the constitutionality of their ACCA-enhanced sentences in a habeas petition. See In re Watkins, 810 F.3d 375, 382 (6th Cir. 2015). A defendant is considered an Armed Career Offender under the ACCA if he or she violates 18 U.S.C. § 922(g) and has at least three qualifying convictions for a “violent felony” or a serious drug offense. See United States v. Kemmerling, 612 Fed.Appx. 373, 375 (6th Cir. 2015). The ACCA defines the term “violent felony” as follows: Any crime punishable by imprisonment for a term exceeding one year, ... that (i) [ (Force Clause) ] has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) [ (Enumerated-Felony Clause) ] is ■ burglary, arson, or extortion, involves the use of explosives, or [ (Residual Clause) ] otherwise involves conduct that presents a serious potential risk of physical injury to another[.] See 18 U.S.C. § 924(e)(2)(B); United States v. Elliott, 757 F.3d 492, 494 (6th Cir. 2014). The Supreme Court of the United States held in Johnson v. United States, — U.S. —, 185 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that the residual clause is unconstitutionally vague. The record demonstrates that the district court relied on four prior convictions to qualify Sargent for a sentencing enhancement under the ACCA: (1) arson; (2) first-degree wanton endangerment;" }, { "docid": "12191586", "title": "", "text": "of the Fifth Amendment. — U.S. -, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). Under the ACCA, a defendant who “has three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony’ ” is subject to a “prison term [of] a minimum of 15 years and a maximum of life.” Id. at 2555 (quoting 18 U.S.C. § 924(e)(1)). The ACCA’s now-invalidated residual clause defined “violent felony” as including any crime punishable by more than one year in prison and that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Applying the void-for-vagueness doctrine, the Supreme Court concluded that the ACCA’s residual clause failed to provide “fair notice to defendants” and “invite[d] arbitrary enforcement by judges,” denying due process of law to a defendant whose sentence is increased under the clause. Johnson, 135 S.Ct. at 2557. Relying on Johnson’s invalidation of the ACCA’s residual clause, Patrick asserts that he is entitled to resentencing because he was designated a career offender based on an identically worded and interpreted residual clause in the United States Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual, § 4B1.2(a)(2). We have determined, on direct review, that Johnson compels invalidation of the Guidelines’ residual clause as unconstitutionally vague. United States v. Pawlak, 822 F.3d 902, 903 (6th Cir. 2016). And the Supreme Court has held that Johnson announced a new, “substantive rule that has retroactive effect in cases on collateral review.” Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016); see also In re Watkins, 810 F.3d at 384. The Government agrees, moreover, that two of the predicate offenses for Patrick’s career offender designation — reckless aggravated assault and evading arrest — were counted under the residual clause of the Guidelines and would no longer qualify as crimes of violence if he had been sentenced post -Johnson. The Government argues, however, that Patrick’s motion should be denied because, as applied to the Guidelines, the rule announced in Johnson is procedural, rather than substantive, and thus does not apply" }, { "docid": "12036512", "title": "", "text": "as an armed career criminal under 18 U.S.C. § 924(e)(1). “We review de novo whether a prior conviction is a predicate offense under the ACCA.” United States v. Humphrey, 759 F.3d 909, 911 (8th Cir.2014) (quoting United States v. Van, 543 F.3d 963, 966 (8th Cir.2008)). Shockley’s PSR lists three prior felony convictions for resisting arrest under a Missouri statute that states, in relevant part: 1. A person commits the crime of resisting or interfering with arrest, detention, or stop if ..,. the person: (1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer; or (2) Interferes with the arrest, stop or detention of another person by using or threatening the use of violence, physical force or physical'interference. Mo. Rev. Stat. § 575.150. Violating the statute constitutes a felony if either (1) the defendant resisted or interfered with an arrest for a felony offense, or (2) the defendant resisted arrest “by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person.” § 575.150.5. Because the district court determined that these prior convictions were violent felonies under the ACCA’s residual clause, Shockley was subject to a mandatory mini mum sentence of fifteen years’ imprisonment. However, while this appeal was pending, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague. See Johnson, 135 S.Ct. at 2557. Thus, Shockley’s prior convictions no longer can qualify as predicate offenses under the ACCA’s residual clause. The remaining question, then, is whether Shockley’s prior felonies can qualify as predicate offenses under the ACCA’s force clause. The force clause of the ACCA encompasses felony offenses that “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). In determining whether a prior conviction qualifies as a.predicate offense triggering a sentencing enhancement, we apply the “categorical approach,” under which we “look only to the fact of conviction and the statutory definition of" }, { "docid": "23386312", "title": "", "text": "184 L.Ed.2d 169 (2012). Subsequent case law instructs us that Gandy’s 2001 conviction for simple vehicle flight in violation of Fla. Stat. § 316.1935(2) is a predicate offense under the ACCA. At the time of Gandy’s sentencing, this Court had held that a state conviction under Fla. Stat. § 316.1935(2) was not a violent felony under the ACCA. See United States v. Harrison, 558 F.3d 1280, 1296 (11th Cir.2009), abrogated by Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), recognized in United States v. Petite, 703 F.3d 1290, 1297 (11th Cir.2013). At sentencing, the district court recognized that the Supreme Court’s decision in Sykes v. United States, — U.S.-, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), significantly called our holding in Harrison into question, but the district court was “of the opinion that it is still bound by the Harrison decision until such time as the 11th Circuit recedes from it or the Supreme Court expressly overrules Harrison.” After Gandy’s sentencing, this Court expressly held that the Supreme Court in Sykes had abrogated our holding in Harrison. See United States v. Petite, 703 F.3d 1290, 1297 (11th Cir.2013). As in Petite and Harrison, Gandy had a prior conviction for simple vehicle flight (Gandy’s 2001 conviction). We held in Petite that simple vehicle flight in violation of Fla. Stat. § 316.1935(2) qualifies as a violent felony under the residual clause of § 924(e)(2)(B)(ii). Id. at 1301. This Court in Petite addressed and rejected all the arguments (except one) raised by Gandy in challenging his conviction for simple vehicle flight as a qualifying predicate crime for ACCA purposes. We now address the one additional argument raised by Gandy. Gandy argues that the residual clause in the ACCA is unconstitutionally vague. We reject this contention, however, as the Supreme Court has already determined that the residual clause, although at times “difficult for courts to implement,” falls “within congressional power to enact” and constitutes “an intelligible principle [that] provides guidance that allows a person to ‘conform his or her conduct to the law.’ ” Sykes, 131 S.Ct. at" }, { "docid": "18133072", "title": "", "text": "Cir.2005); see also United States v. Spinner, 475 F.3d 356, 360 (D.C.Cir.2007) (“[T]he suspicion that someone is armed ... must be based upon something more than his mere nervousness. A person stopped by the police is entitled to be nervous without thereby suggesting he is armed and dangerous.... ”), such behavior is a relevant factor to be considered along with others in assessing the totality of the circumstances, see United States v. Chaney, 584 F.3d 20, 27 (1st Cir.2009). Accordingly, we conclude that, in light of the totality of the circumstances, Officer Selfridge had a reasonable suspicion that Mouscardy might be armed and dangerous, thus justifying his initiation of the frisk. III. Mouscardy maintains that his Sixth Amendment rights were violated when the district court sentenced him as an armed career criminal because the predicate offenses on which the district court relied are not categorically violent felonies under the Armed Career Criminal Act (“ACCA”), and because the government failed to present documents that support a finding that his predicate offenses were in fact violent. We review de novo whether the convictions upon which the district court relied categorically qualify as ACCA predicate offenses. Hart, 674 F.3d at 40. To be eligible for an ACCA enhancement, Mouscardy “had to have been convicted of three prior violent felonies, serious drug offenses, or a combination thereof.” Id.; see 18 U.S.C. § 924(e)(1). A “violent felony” is defined by the statute as any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another!;.] 18 U.S.C. § 924(e)(2)(B). We have referred to the first clause as the “force clause,” and the portion of the second clause following the enumerated offenses as the “residual clause.” Hart, 674 F.3d at 41. “Under either clause, we take a categorical approach in determining whether a conviction qualifies as an ACCA predicate" }, { "docid": "20685060", "title": "", "text": "to exercise dominion and control over the firearm.” Id. Jury instructions that imply knowledge or an awareness of the object possessed when defining constructive possession, substantially cover the requirement that a defendant knowingly possess a firearm — the use of such an instruction does not constitute reversible error. See United States v. Winchester, 916 F.2d 601, 605 (11th Cir.1990). Hill’s proposed jury instruction was an accurate statement of the law, but the instruction given by the district court adequately covered Hill’s proposed instruction. See Dominguez, 661 F.3d at 1071. Furthermore, the district court’s instruction on the elements of the crime stated that it must be proved beyond a reasonable doubt that Hill knowingly possessed a firearm. Finally, the definition of constructive possession given to the jury impliedly required that Hill knowingly possess the firearm. See Winchester, 916 F.2d at 605. Thus, the district court did not abuse its discretion in denying Hill’s request to modify the jury instruction to include the word “knowingly,” and therefore, we affirm Hill’s conviction. II. On cross-appeal, the government argues that the district court erred in concluding that Hill’s prior felony convictions in Florida for battery on a law enforcement officer and resisting an officer with violence do not constitute violent felonies under the ACCA. The government contends that both convictions constitute violent felonies under the ACCA’s residual clause pursuant to this Court’s well-established binding precedent. We review de novo whether a defendant’s prior convictions qualify as violent felonies under the ACCA. United States v. Petite, 703 F.3d 1290, 1292 (11th Cir.2013). The ACCA provides that a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a violent felony or serious drug offense is subject to a fifteen-year statutory minimum sentence. See § 924(e)(1). The last clause of § 924(e)(2)(B)(ii) of the ACCA, commonly referred to as the “residual clause,” enumerates crimes that present “a serious potential risk of physical injury to another.” Petite, 703 F.3d at 1293-94 (internal quotation marks omitted). The Supreme Court recently held that the residual clause of the ACCA was unconstitutionally vague. See Johnson v. United" }, { "docid": "19331462", "title": "", "text": "defined third-degree burglary to exclude the potential presence of a victim, thereby eliminating a serious potential risk to others. Third, he argued that the residual clause was unconstitutionally vague. The district court concluded that the proffered documents adequately demonstrated that Phillips was convicted of a “burglary” within the meaning of the ACCA. The district court thus found it unnecessary to determine whether Phillips’s burglary conviction qualified under the ACCA’s residual clause. Phillips timely appealed. II. The government concedes that, in light of the Supreme Court’s recent decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which postdates the district court’s judgment, the evidence in the record does not establish that Phillips committed a generic burglary. Nevertheless, we may affirm the district court on any ground supported by the record. United States v. Gill, 685 F.3d 606, 609 (6th Cir.2012). We therefore turn to the applicability of the ACCA’s residual clause. A. We review de novo the question whether a defendant’s prior conviction is a violent felony under the ACCA. See United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir.2013). We also review a challenge to the constitutionality of a statute de novo. Id. at 403. B. The ACCA imposes a fifteen-year minimum sentence on a defendant convicted under 18 U.S.C. § 922(g) when that defendant has three or more prior convictions for a “violent felony” or a “serious drug offense” or both. 18 U.S.C. § 924(e)(1). The ACCA contains a list of enumerated violent felonies: burglary, arson, extortion, and crimes involving the use of explosives. Id. § 924(e)(2)(B)(ii). The ACCA’s residual clause defines a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. “A sentencing court applies a ‘categorical’ approach to determine the nature of a prior conviction, which means that it focuses on the statutory definition of the offense, rather than the manner in which an offender may have violated the statute in a particular circumstance.” United States v. Denson, 728 F.3d 603, 607 (6th Cir.2013). Under the ACCA’s" }, { "docid": "16142729", "title": "", "text": "district court’s judgment. United States v. Sargent, No. 10-5182, 2012 WL 34371 (6th Cir. Jan. 9, 2012). Sargent filed his first § 2255 motion in 2014, claiming that it was error for the district court, rather than a jury, to enhance his sentence on the basis of his prior convictions, based on Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The district court denied the motion, and this court denied a certificate of appealability. In his current motion, Sargent asserts that he is entitled to relief from his enhanced sentence based on Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), in which the Supreme Court invalidated the so-called “residual clause” of the ACCA as unconstitutionally vague. Sargent claims that the district court ruled that his prior conviction for wanton endangerment fell within the residual clause. He also argues that his prior conviction for arson has been reversed and cannot qualify as a predicate offense. He therefore asserts that he cannot be sentenced under the ACCA because he no longer has three qualifying predicate offenses. II. DISCUSSION We may authorize the filing of a second or successive § 2255 motion when the applicant makes a prima facie showing that his proposed claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). Pertinent to Sargent’s motion, the Supreme Court has declared, in the context of the ACCA, that the rule announced in Johnson has retroactive effect to cases on collateral review. Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). This means that petitioners, like Sargent, who were sentenced pre-Johnson can apply Johnson's holding to attack the constitutionality of their ACCA-enhanced sentences in a habeas petition. See In re Watkins, 810 F.3d 375, 382 (6th Cir. 2015). A defendant is considered an Armed Career Offender under the ACCA if he or she violates 18 U.S.C. § 922(g) and has at least three qualifying convictions for a" }, { "docid": "19459840", "title": "", "text": "possession of a firearm faces a minimum of fifteen years' imprisonment if the defendant has three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). At the time of Defendant's sentencing, a violent felony was defined as \"any crime punishable by imprisonment for a term exceeding one year\" that (1) \"has as an element the use, attempted use, or threatened use of physical force against the person of another\" (the elements clause); (2) \"is burglary, arson, or extortion, involves use of explosives\" (the enumerated offense clause); or (3) \"otherwise involves conduct that presents a serious potential risk of physical injury to another\" (the residual clause). § 924(e)(2)(B). Defendant's presentence investigation report (PSR) recommended an enhanced sentence under the ACCA based on three prior felony convictions: (1) a juvenile adjudication for pointing a weapon; (2) assault and battery with a dangerous weapon; and (3) burglary in the second degree. Defendant objected to the PSR's recommended sentence, arguing only that the juvenile adjudication for pointing a weapon did not qualify as a predicate offense under the ACCA. Defendant argued the adjudication arose from a misdemeanor charge, it was not a conviction, and it was ultimately dismissed. At a sentencing hearing in December 2011, the district court rejected all three arguments and held Defendant's juvenile adjudication qualified as an ACCA predicate offense. Pursuant to the ACCA, the district court imposed the mandatory minimum sentence of 180 months' imprisonment. We affirmed on direct appeal. United States v. Washington , 706 F.3d 1215 (10th Cir. 2012). In 2014, Defendant filed a § 2255 motion to vacate, set aside, or correct his sentence, alleging ineffective assistance of counsel. The district court denied this motion, and Defendant did not appeal. In 2015, the Supreme Court's decision in Johnson struck the ACCA's residual clause as unconstitutionally vague but left the elements clause and enumerated offense clause intact. 135 S.Ct. at 2563. The Supreme Court later held Johnson is retroactive in cases on collateral review, allowing defendants previously sentenced under the ACCA's residual clause to challenge their sentences. Welch v. United States , --- U.S." }, { "docid": "3399878", "title": "", "text": "pin or by holding the cylinder in place manually. III. CHALLENGES TO THE SENTENCE The court agreed with defense counsel that while Dancy, from age seventeen, had a “bad record,” the court had seen “really bad records” comparatively, and Dancy’s record was of picking “very low hanging fruit.” Indeed, the court noted that in most instances Dancy had hurt himself, rather than others. For that reason, the court departed downward from the guideline range of 235 to 293 months, concluding that “180 months is certainly sufficient, perhaps even more than sufficient, but it’s the minimum sentence I can impose.” That minimum sentence resulted from the court’s finding that Dancy had committed at least three state offenses which qualified as ACCA predicate offenses. See 18 U.S.C. § 924(e)(1) (“[A] person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense ... shall be ... imprisoned not less than fifteen years.... ”). Dancy concedes he has two qualifying predicate drug offenses. The government concedes that one offense — a “guilty filed” state outcome — does not qualify because it is not clear that there was an actual conviction on the available facts. The question then boils down to whether Dancy’s remaining Massachusetts convictions for either ABPO or ABDW qualify under the force or the residual clauses of the ACCA, described below. A. Standard of Review The ultimate question of law— whether a prior conviction qualifies as a predicate offense under the ACCA — is reviewed de novo. United States v. Pakala, 568 F.3d 47, 54 (1st Cir.2009). However, there is a preliminary question of the standard of overall appellate review, as Dancy did not argue until a late round of supple mental briefing following our Holloway opinion that these prior offenses were not ACCA predicates under the Supreme Court’s Begay and Johnson decisions. Be-gay was decided before Dancy’s sentencing, and Johnson was decided after sentencing but months before he filed his opening brief in this court. The government argues that Dancy’s claim is waived or, at the very least, forfeited" }, { "docid": "22882090", "title": "", "text": "is affirmed. We vacate Howard’s sentence and remand for resentencing without the ACCA enhancement. Howard asks that we limit the scope of resentencing on remand to prevent the government from seeking an enhancement under the ACCA’s residual clause. See 18 U.S.C. § 924(e)(2)(B)(ii) (providing that the ACCA enhancement applies to crimes punishable by more than a year that “involve[] conduct that presents a serious potential risk of physical injury to another”). We have discretion under 28 U.S.C. § 2106 to determine the appropriate scope of proceedings on remand in a criminal case. See United States v. Martinez, 606 F.3d 1303, 1304-05 (11th Cir.2010). The government has not challenged Howard’s proposed limitation by requesting an opportunity to prove on remand that his convictions qualify as violent felonies under the ACCA’s residual clause. For that reason, we will exercise our discretion to grant his unopposed request. On remand, the district court should sentence Howard without the ACCA enhancement, and the government may not argue that any of Howard’s prior convictions qualify as violent felonies under 18 U.S.C. § 924(e)(2)(B)(ii). That will not, however, limit the district court’s ability to consider the information and evidence from the first sentence hearing, including all of Howard’s criminal history and all of his convictions, whether under divisible or indivisible statutes, when it determines an appropriate punishment under the 18 U.S.C. § 3553(a) sentencing factors at the resentencing on remand. Our circuit law that unobjected to facts in a PSR are taken as true and may be used in determining the appropriate sentence under 18 U.S.C. § 3553 is unaffected by the Des-camps decision, except insofar as ACCA sentencing enhancements are concerned. See, e.g., United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.2006) (“It is the law of this circuit that a failure to object to allegations of fact in a [PSR] admits those facts for sentencing purposes.”); United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.2004) (“The district court’s factual findings for purposes of sentencing may be based on, among other things, ... undisputed statements in the [PSR].... ”). AFFIRMED in part; VACATED and" }, { "docid": "9018269", "title": "", "text": "the remaining charges. Ovalles did not object to her sentences, nor did she file a direct appeal. C Several years later, Ovalles filed a motion for relief under 28 U.S.C. § 2255 contending that her § 924(c) conviction and sentence were unconstitutional in light of the Supreme Court's intervening decision in Johnson v. United States , --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In short, the Court in Johnson invalidated as unconstitutionally vague the Armed Career Criminal Act's residual clause-which, for purposes of applying that statute's recidivism-based sentence enhancement, defines the term \"violent felony\" to include any crime that is punishable by a year in prison and that \"involves conduct that presents a serious potential risk of physical injury to another.\" 18 U.S.C. § 924(e)(2)(B)(ii). The Court voided the ACCA's residual clause principally based on its conclusion that the provision necessitated the categorical approach to determining whether an underlying conviction constitutes a \"violent felony.\" See Johnson , 135 S.Ct. at 2557-58, 2561-63. Ovalles asserted that because § 924(c)(3)'s residual clause is \"nearly identical to\" the ACCA's, Johnson 's reasoning rendered it unconstitutional, as well. Accordingly, she argued, she was \"no longer guilty of violating\" § 924(c) because her predicate attempted-carjacking offense \"no longer qualifie[d] as a crime of violence under § 924(c)(3)(B).\" The district court denied Ovalles's § 2255 motion, reasoning that § 924(c)(3)'s residual clause did \"not suffer from the same unpredictability\" as the ACCA's. The court subsequently granted Ovalles a certificate of appealability on the question whether § 924(c)(3)(B) is unconstitutionally vague under Johnson . A panel of this Court affirmed the district court's decision. For our purposes, the panel's opinion did two significant things. First, in accordance with (and citing to) our earlier decision in McGuire , it held that the question whether Ovalles's attempting-carjacking offense constitutes a \"crime of violence\" within the meaning of § 924(c)(3) had to be answered using the categorical approach. See Ovalles v. United States , 861 F.3d 1257, 1268-69 (11th Cir. 2017), reh'g en banc granted, opinion vacated , 889 F.3d 1259 (11th Cir. 2018). Second, though-and notwithstanding" }, { "docid": "19195920", "title": "", "text": "the officers searched the apartment, where they discovered the gun underneath a couch. Rodriquez was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He moved to suppress evidence seized during the search, asserting that Tammi’s consent was not voluntary. The district court denied the motion, and Rodriquez was convicted by a jury. Rodriquez also objected to the government’s request that the judge enhance his sentence under the ACCA. He contended that his two prior burglary convictions and three prior drug convictions did not qualify as predicate offenses under the ACCA. The district court concluded that Rodriquez’s prior burglary convictions qualified as two predicate offenses; however, relying on Corona-Sanchez, the district court held that the ACCA enhancement did not apply because Rodriquez’s prior drug convictions did not qualify as predicate offenses. This timely appeal and cross-appeal followed. II DISCUSSION A. The Motion to Suppress Was Properly Denied Because Tammi Putnam Voluntarily Consented to the Search of Apartment 36 “We review de novo the district court’s denial of a suppression motion. The district court’s underlying factual finding that a person voluntarily consented to a search is reviewed for clear error.” United States v. Pang, 362 F.3d 1187, 1191 (9th Cir.2004) (citations omitted). “It is well settled that a search conducted pursuant to a valid consent is constitutionally permissible.” United States v. Soriano, 361 F.3d 494, 501 (9th Cir.2004) (citation and internal quotation marks omitted). “Whether consent to search was voluntarily given is to be determined from the totality of all the circumstances. It is the government’s burden to prove that the consent was freely and voluntarily given. On appeal, evidence regarding the question of consent must be viewed in the light most favorable to the fact-finder’s decision.” Id. (citations and internal quotation marks omitted). “Our cases have identified five factors to be considered in determining the voluntariness of consent to a search. They are: (1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that she" }, { "docid": "7187172", "title": "", "text": "shot was fired from I don’t know exactly if it came from Mr. Eason. My belief it was.” However, the evidence also included Williams’s testimony that he saw Eason leave Williams’s home with “something that looked like a gun,” and that Eason had a “big pistol.” The jury also heard evidence about the spent bullet casings found at the Williams residence, the 911 call from Erica Davis telling officers Eason had a gun, and the testimony of an officer who responded to the scene and said Davis told him Eason had a gun. The jury was permitted to consider all of the evidence and give it the weight it saw fit. Viewing the evidence in the light most favorable to the jury’s verdict, we cannot find that “no reasonable jury” could have concluded that Eason knowingly possessed ammunition as charged in Count 2. Armstrong, 782 F.3d at 1035. 4. Armed Career Criminal Enhancement Eason asserts the district court erred by sentencing him as an armed career criminal under 18 U.S.C. § 924(e)(1) (“In the case of a person who violates section 922(g) of this title and has three previous convictions for a violent felony or a serious drug offense, or both ... such person ... shall be imprisoned not less than fifteen years.... ”). Eason has a prior 2006 conviction for delivery of cocaine, which he does not contest qualifies as a serious drug offense for purposes of the ACCA. We now must determine whether he has two additional qualifying prior convictions such that he was properly sentenced pursuant to the ACCA. “We review de novo whether a prior conviction is a predicate offense under the ACCA.” United States v. Shockley, 816 F.3d 1058, 1062 (8th Cir. 2016) (quoting United States v. Humphrey, 759 F.3d 909, 911 (8th Cir. 2014)). At sentencing, Eason made a general objection to use of the residual clause of the ACCA, arguing it was unconstitutionally vague and could not be applied to determine whether his prior convictions qualified for purposes of the enhancement. Eason did not specifically object to any particular conviction or make any" }, { "docid": "19331461", "title": "", "text": "weapon or explosive, and the offender enters or remains in a: (a) Structure, and there is not another person in the structure at the time the offender enters or remains[.] Id. § 810.02(4)(a). In 2012, Philips pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Report determined that Phillips qualified for an enhanced sentence under the ACCA, concluding that his Florida conviction was a burglary as defined in 18 U.S.C. § 924(e)(2)(B)(ii). Phillips objected to the ACCA enhancement on three grounds. First, he argued that his prior conviction was not categorically a generic burglary within the meaning of § 924(e)(2)(B)(ii) under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and that the government had failed to prove that his was a generic burglary with appropriate Shepard documents, see Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Second, he argued that the ACCA’s residual clause did not apply because the Florida statute defined third-degree burglary to exclude the potential presence of a victim, thereby eliminating a serious potential risk to others. Third, he argued that the residual clause was unconstitutionally vague. The district court concluded that the proffered documents adequately demonstrated that Phillips was convicted of a “burglary” within the meaning of the ACCA. The district court thus found it unnecessary to determine whether Phillips’s burglary conviction qualified under the ACCA’s residual clause. Phillips timely appealed. II. The government concedes that, in light of the Supreme Court’s recent decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which postdates the district court’s judgment, the evidence in the record does not establish that Phillips committed a generic burglary. Nevertheless, we may affirm the district court on any ground supported by the record. United States v. Gill, 685 F.3d 606, 609 (6th Cir.2012). We therefore turn to the applicability of the ACCA’s residual clause. A. We review de novo the question whether a defendant’s prior conviction is a violent felony under the" }, { "docid": "10150300", "title": "", "text": "MEMORANDUM AND ORDER WILLIAM E. SMITH, Chief United States District Judge and JOHN J. McCONNELL, JR., United States District Judge. Before the Court are the Defendants’ motions under 28 U.S.C. § 2255 to vacate, set aside, or correct their sentences. All the Defendants were sentenced after being convicted of violating 18 U.S.C. § 922(g), which makes it unlawful for felons “to possess in or affecting commerce, any firearm or ammunition.” All the Defendants received mandatory sentences of at least 15 years pursuant to the Armed Career Criminal Act (ACCA), which requires a sentence of at least that length for possessing a firearm or ammunition when a person has three prior convictions by any court for violent felonies or serious drug offenses or a combination of both. 18 U.S.C. § 924(e). For persons without three qualifying predicate convictions, the statute permits a maximum sentence of 10 years. 18 U.S.C. § 924(a)(2). The Defendants argue that they no longer have three qualifying predicate convictions because of the United States Supreme Court’s recent decision in Johnson v. United States (Johnson II), — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which invalidated the ACCA’s residual clause for being unconstitutionally vague. Specifically, the Defendants argue that their convictions for the Rhode Island offense of Felony Assault/Assault with a Dangerous Weapon (“ADW”) no longer qualify as ACCA predicate offenses. The Court holds that because Rhode Island’s ADW can be satisfied with a mens rea of recklessness, and the ACCA requires a mens rea of more than recklessness to constitute a violent felony under 18 U.S.C. § 924, six of the Defendants (Weems, Sabetta, Paige, Rodriguez, Rose, and Lee) no longer have the necessary three predicate convictions to qualify as an Armed Career Criminal. The sole exception is Defendant Young, whose motion raises additional issues that need further analysis. Accordingly, the Court will schedule the Defendants, individually, for hearings on their motions to vacate and re-sentencings forthwith. BACKGROUND In Johnson II, the Supreme Court narrowed the scope of crimes that qualify as “violent felonies” by invalidating the residual clause of that term’s definition in the" }, { "docid": "22456444", "title": "", "text": "Miranda warnings. Id. at 438-39, 86 S.Ct. 1602. We therefore conclude that because Gardner’s interaction with the police during the traffic stop did not evolve into a de facto arrest, his statement concerning the gun was not obtained in violation of his Fifth Amendment rights. Gardner’s acknowledgement of the gun, together with the informant’s tip and Gardner’s furtive behavior, provided the officers probable cause to search Gardner’s car. We therefore conclude that the officers lawfully searched Gardner’s automobile. See United States v. Kelly, 592 F.3d 586, 589-90 (4th Cir.2010). Accordingly, we hold that the district court did not err in denying Gardner’s motion to suppress his statements and the weapon found in his car. B. Gardner also challenges his designation as an armed career criminal under the ACCA. He argues that his three predicate convictions for North Carolina common law robbery do not qualify as “violent felonies” because: (1) the definition of a violent felony under the ACCA’s “residual clause” is unconstitutional; and (2) his robbery convictions do not qualify as violent felonies under the “force clause” of the ACCA. The government counters that Gardner’s convictions categorically are violent felonies under the force clause because North Carolina common Jaw robbery, which requires the taking of property by means of “violence” or “fear,” necessarily involves the “use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). We disagree with the government’s argument. 1. Gardner preserved this issue in the district court and, therefore, we review de novo the question whether his prior state convictions qualified as “predicate felony conviction[s] for purposes of a federal sentence enhancement.” United States v. Valdovinos, 760 F.3d 322, 325 (4th Cir.2014). A “violent felony” is defined under the ACCA as any crime “punishable by imprisonment for a term exceeding one year” that either “has as an element the use, attempted use, or threat ened use of physical force against the person of another” (the force clause), or “is burglary, arson, or extortion, [or] involves use of explosives” (the enumerated language), or “otherwise involves conduct that presents a serious" }, { "docid": "20685061", "title": "", "text": "that the district court erred in concluding that Hill’s prior felony convictions in Florida for battery on a law enforcement officer and resisting an officer with violence do not constitute violent felonies under the ACCA. The government contends that both convictions constitute violent felonies under the ACCA’s residual clause pursuant to this Court’s well-established binding precedent. We review de novo whether a defendant’s prior convictions qualify as violent felonies under the ACCA. United States v. Petite, 703 F.3d 1290, 1292 (11th Cir.2013). The ACCA provides that a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a violent felony or serious drug offense is subject to a fifteen-year statutory minimum sentence. See § 924(e)(1). The last clause of § 924(e)(2)(B)(ii) of the ACCA, commonly referred to as the “residual clause,” enumerates crimes that present “a serious potential risk of physical injury to another.” Petite, 703 F.3d at 1293-94 (internal quotation marks omitted). The Supreme Court recently held that the residual clause of the ACCA was unconstitutionally vague. See Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 2557-58, 192 L.Ed.2d 569 (2015). The Supreme Court, however, did “not call into question application of the Act to the four enumerated offenses, or the remainder of the [ACCA’s] definitions of a violent felony.” Id. at -, 135 S.Ct. at 2563. Thus, by holding in Johnson that the ACCA’s residual clause is unconstitutional, the Supreme Court necessarily abrogated this Court’s prior binding precedent, which held that these two Florida felony convictions qualified as predicate offenses under the residual clause of the ACCA. Conse quently, Johnson forecloses the government’s argument on appeal that Hill’s pri- or Florida felony convictions for battery on a law enforcement officer and resisting an officer with violence are violent felonies under the ACCA’s residual clause. As previously mentioned, in Johnson the Supreme Court expressly limited its holding to the ACCA’s residual clause, leaving undisturbed “the remainder of the [ACCA’s] definitions of a violent felony,” which would include the ACCA’s definition of a violent felony under its elements clause. Id. Section 924(e)(2)(B)(i) of the ACCA" } ]

[ { "docid": "147850", "title": "", "text": "only that his seizure was objectively unreasonable. See Sykes, 625 F.3d at 310-11 (“[T]he reasonableness of a seizure under the Fourth Amendment should be analyzed from an objective perspective, which, even in the context of malicious-prosecution claims, renders irrelevant the subjective state of mind of the defendant[.]” (internal quotation marks omitted)). However, as we shall explain, there may be less to this divide than first appears. 2. Our Approach Today, we join our sister circuits in concluding that the Fourth Amendment protection against seizure but upon probable cause does not end when an arrestee becomes held pursuant to legal process. Though the Fifth and Sixth Amendments generally control events following the arrest and arraignment of an individual accused of committing a crime, we are convinced that an individual does not lose his Fourth Amendment right to be free from unreasonable seizure when he becomes detained pursuant to judicial process. Certainly, in most cases, the neutral magistrate’s determination that probable cause exists for the individual’s arrest is an intervening act that could disrupt any argument that the defendant officer had caused the continued unlawful seizure. See Sanchez v. Pereirar-Castillo, 590 F.3d 31, 50 (1st Cir.2009) (“We employ common law tort principles when conducting ‘inquiries into causation under § 1983.’ ” (quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir.1989))). But, if a plaintiff can overcome this causation problem and demonstrate that law enforcement officers were responsible for his continued, unreasonable pretrial detention, the plaintiff has stated a constitutional injury that may be vindicated through a § 1983 action. See Evans, 703 F.3d at 647 (“[Ejven where ... a prosecutor retains all discretion to seek an indictment, police officers may have caused the seizure and remain liable to a wrongfully indicted defendant^]”). For example, officers may be liable for unlawful pretrial detention when they have (1) “lied to or misled the prosecutors”; (2) “failed to disclose exculpatory evidence”; or (3) “unduly pressured the prosecutor to seek the indictment.” Id. at 647-48; see also Sykes, 625 F.3d at 308-309 (requiring plaintiff to demonstrate that the defendant officer “made, influenced, or participated in" } ]

[ { "docid": "19627973", "title": "", "text": "A person challenging the sufficiency of the evidence to support both a conviction and any ensuing incarceration does so under the Due Process Clause of the Fourteenth Amendment. See Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (invalidating a conviction under the Due Process Clause when \"the record evidence could [not] reasonably support a finding of guilt beyond a reasonable doubt\"); Thompson v. Louisville, 362 U.S. 199, 204, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) (striking a conviction under the same provision when \"the record [wa]s entirely lacking in evidence\" of guilt-such that it could not even establish probable cause). Gerstein and Albright, as already suggested, both reflected and recognized that constitutional division of labor. See supra, at 917 - 918. In their words, the Framers \"drafted the Fourth Amendment\" to address \"the matter of pretrial deprivations of liberty,\" Albright, 510 U.S., at 274, 114 S.Ct. 807 (emphasis added), and the Amendment thus provides \"standards and procedures\" for \"the detention of suspects pending trial, \" Gerstein, 420 U.S., at 125, n. 27, 95 S.Ct. 854 (emphasis added). The two exceptions-the Ninth and D.C. Circuits-have not yet weighed in on whether a Fourth Amendment claim like Manuel's includes a \"favorable termination\" element. The dissent would have us address these questions anyway, on the ground that \"the conflict on the malicious prosecution question was the centerpiece of Manuel's argument in favor of certiorari.\" Post, at 923. But the decision below did not implicate a \"conflict on the malicious prosecution question\"-because the Seventh Circuit, in holding that detainees like Manuel could not bring a Fourth Amendment claim at all, never considered whether (and, if so, how) that claim should resemble the malicious prosecution tort. Nor did Manuel's petition for certiorari suggest otherwise. The principal part of his question presented-mirroring the one and only Circuit split involving the decision below-reads as follows: \"[W]hether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process.\" Pet. for Cert. i. That is exactly the issue we have resolved. The rest of Manuel's question did indeed express" }, { "docid": "19627954", "title": "", "text": "Taylor, 723 F.3d 91, 99 (C.A.1 2013) (\"[T]here is now broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon probable cause extends through the pretrial period\"). Still, the court decided, Manuel had failed to offer a sufficient reason for overturning settled Circuit precedent; his argument, albeit \"strong,\" was \"better left for the Supreme Court.\" 590 Fed.Appx., at 643. On cue, we granted certiorari. 577 U.S. ----, 136 S.Ct. 890, 193 L.Ed.2d 783 (2016). II The Fourth Amendment protects \"[t]he right of the people to be secure in their persons ... against unreasonable ... seizures.\" Manuel's complaint seeks just that protection. Government officials, it recounts, detained-which is to say, \"seiz[ed]\"-Manuel for 48 days following his arrest. See App. 79-80; Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (\"A person is seized\" whenever officials \"restrain[ ] his freedom of movement\" such that he is \"not free to leave\"). And that detention was \"unreasonable,\" the complaint continues, because it was based solely on false evidence, rather than supported by probable cause. See App. 79-80; Bailey v. United States, 568 U.S. 186, 192, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) ( \"[T]he general rule [is] that Fourth Amendment seizures are 'reasonable' only if based on probable cause to believe that the individual has committed a crime\"). By their respective terms, then, Manuel's claim fits the Fourth Amendment, and the Fourth Amendment fits Manuel's claim, as hand in glove. This Court decided some four decades ago that a claim challenging pretrial detention fell within the scope of the Fourth Amendment. In Gerstein, two persons arrested without a warrant brought a § 1983 suit complaining that they had been held in custody for \"a substantial period solely on the decision of a prosecutor.\" 420 U.S., at 106, 95 S.Ct. 854. The Court looked to the Fourth Amendment to analyze-and uphold-their claim that such a pretrial restraint on liberty is unlawful unless a judge (or grand jury) first makes a reliable finding of probable cause. See id., at 114, 117, n. 19, 95" }, { "docid": "19627985", "title": "", "text": "conviction . For example, in Haring v. Prosise, 462 U.S. 306, 308, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983), the respondent pleaded guilty to a drug crime without raising any Fourth Amendment issues. He then brought a § 1983 suit, challenging the constitutionality of the search that led to the discovery of the drugs on which his criminal charge was based. The Court held that respondent's suit could proceed-despite his valid conviction. Id., at 323, 103 S.Ct. 2368 ; see also Heck, 512 U.S., at 487, n. 7, 114 S.Ct. 2364 (\"[A] suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction\"). The favorable-termination element is similarly irrelevant to claims like Manuel's. Manuel alleges that he was arrested and held based entirely on falsified evidence. In such a case, it makes no difference whether the prosecution was eventually able to gather and introduce legitimate evidence and to obtain a conviction at trial. The unlawful arrest and detention would still provide grounds for recovery. Accordingly, there is no good reason why the accrual of a claim like Manuel's should have to await a favorable termination of the prosecution. For all these reasons, malicious prosecution is a strikingly inapt \"tort analog[y],\" Wilson, 471 U.S., at 277, 105 S.Ct. 1938 for Fourth Amendment violations. So the answer to the question presented in Manuel's certiorari petition is that the Fourth Amendment does not give rise to a malicious prosecution claim, and this means that Manuel's suit is untimely. I would affirm the Seventh Circuit on that basis. II Instead of deciding the question on which we granted review, the Court ventures in a different direction. The Court purports to refrain from deciding any issue of timeliness, see ante, at 919, but the Court's opinion is certain to be read by some to mean that every moment of pretrial confinement without probable cause constitutes a violation of the Fourth Amendment. And if that is so, it would seem to follow that" }, { "docid": "19627951", "title": "", "text": "of Joliet and several of its police officers (collectively, the City). Section 1983 creates a \"species of tort liability,\" Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), for \"the deprivation of any rights, privileges, or immunities secured by the Constitution,\" § 1983. Manuel's complaint alleged that the City violated his Fourth Amendment rights in two ways-first by arresting him at the roadside without any reason, and next by \"detaining him in police custody\" for almost seven weeks based entirely on made-up evidence. See App. 79-80. The District Court dismissed Manuel's suit. See 2014 WL 551626 (N.D.Ill., Feb. 12, 2014). The court first held that the applicable two-year statute of limitations barred Manuel's claim for unlawful arrest, because more than two years had elapsed between the date of his arrest (March 18, 2011) and the filing of his complaint (April 22, 2013). But the court relied on another basis in rejecting Manuel's challenge to his subsequent detention (which stretched from March 18 to May 5, 2011). Binding Circuit precedent, the District Court explained, made clear that pretrial detention following the start of legal process could not give rise to a Fourth Amendment claim. See id., at *1 (citing, e.g., Newsome v. McCabe, 256 F.3d 747, 750 (C.A.7 2001) ). According to that line of decisions, a § 1983 plaintiff challenging such detention must allege a breach of the Due Process Clause-and must show, to recover on that theory, that state law fails to provide an adequate remedy. See 2014 WL 551626, at *1-*2. Because Manuel's complaint rested solely on the Fourth Amendment-and because, in any event, Illinois's remedies were robust enough to preclude the due process avenue-the District Court found that Manuel had no way to proceed. See ibid . The Court of Appeals for the Seventh Circuit affirmed the dismissal of Manuel's claim for unlawful detention (the only part of the District Court's decision Manuel appealed). See 590 Fed.Appx. 641 (2015). Invoking its prior caselaw, the Court of Appeals reiterated that such claims could not be brought under the Fourth Amendment. Once a person" }, { "docid": "19627952", "title": "", "text": "District Court explained, made clear that pretrial detention following the start of legal process could not give rise to a Fourth Amendment claim. See id., at *1 (citing, e.g., Newsome v. McCabe, 256 F.3d 747, 750 (C.A.7 2001) ). According to that line of decisions, a § 1983 plaintiff challenging such detention must allege a breach of the Due Process Clause-and must show, to recover on that theory, that state law fails to provide an adequate remedy. See 2014 WL 551626, at *1-*2. Because Manuel's complaint rested solely on the Fourth Amendment-and because, in any event, Illinois's remedies were robust enough to preclude the due process avenue-the District Court found that Manuel had no way to proceed. See ibid . The Court of Appeals for the Seventh Circuit affirmed the dismissal of Manuel's claim for unlawful detention (the only part of the District Court's decision Manuel appealed). See 590 Fed.Appx. 641 (2015). Invoking its prior caselaw, the Court of Appeals reiterated that such claims could not be brought under the Fourth Amendment. Once a person is detained pursuant to legal process, the court stated, \"the Fourth Amendment falls out of the picture and the detainee's claim that the detention is improper becomes [one of] due process.\" Id., at 643-644 (quoting Llovet v. Chicago, 761 F.3d 759, 763 (C.A.7 2014) ). And again: \"When, after the arrest[,] a person is not let go when he should be, the Fourth Amendment gives way to the due process clause as a basis for challenging his detention.\" 590 Fed.Appx., at 643 (quoting Llovet, 761 F.3d, at 764 ). So the Seventh Circuit held that Manuel's complaint, in alleging only a Fourth Amendment violation, rested on the wrong part of the Constitution: A person detained following the onset of legal process could at most (although, the court agreed, not in Illinois) challenge his pretrial confinement via the Due Process Clause. See 590 Fed.Appx., at 643-644. The Seventh Circuit recognized that its position makes it an outlier among the Courts of Appeals, with ten others taking the opposite view. See id., at 643 ; Hernandez-Cuevas v." }, { "docid": "19627994", "title": "", "text": "in criminal cases, including the detention of suspects pending trial.\" Id., at 125, n. 27, 95 S.Ct. 854. This statement hardly shows that a Fourth Amendment seizure continues throughout a period of pretrial detention, and the Court does not mention the very next sentence in Gerstein -which suggests that the Fourth Amendment might govern \"only the first stage\" of a prosecution, eventually giving way to other protections that are also part of our \"elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct.\" Ibid. (emphasis deleted). In the end, Gerstein stands for the proposition that the Fourth Amendment requires a post-arrest probable cause finding by a neutral magistrate; it says nothing about whether the Fourth Amendment extends beyond that or any other \"legal process.\" * * * A well-known medical maxim-\"first, do no harm\"-is a good rule of thumb for courts as well. The Court's decision today violates that rule by avoiding the question presented in order to reach an unnecessary and tricky issue. The resulting opinion will, I fear, inject much confusion into Fourth Amendment law. And it has the potential to do much harm-by dramatically expanding Fourth Amendment liability under § 1983 in a way that does violence to the text of the Fourth Amendment. I respectfully dissent. The Court defends this evasion on the ground that it is resolving \"the one and only Circuit split involving the decision below.\" Ante, at 922, n. 10. That is flatly wrong. As the Seventh Circuit acknowledged, its decision in this case and an earlier case on which the decision here relied, Newsome v. McCabe, 256 F.3d 747 (2001), conflict with decisions of other circuits holding that a malicious prosecution claim may be brought under the Fourth Amendment. The decision below states: \"Manuel argues that we should reconsider our holding in Newsome and recognize a federal claim for malicious prosecution under the Fourth Amendment regardless of the available state remedy. By his count, 10 other Circuits have recognized federal malicious-prosecution claims under the Fourth Amendment.\" 590 Fed.Appx. 641, 643 (C.A.7 2015). The court refused to" }, { "docid": "19627977", "title": "", "text": "Fourth Amendment continues to apply after \"the start of legal process,\" ante, at 913, if legal process is understood to mean the issuance of an arrest warrant or what is called a \"first appearance\" under Illinois law and an \"initial appearance\" under federal law. Ill. Comp. Stat., ch. 725, §§ 5/109-1(a), (e) (West Supp. 2015) ; Fed. Rule Crim. Proc. 5. But if the Court means more-specifically, that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts-the Court stretches the concept of a seizure much too far. What is perhaps most remarkable about the Court's approach is that it entirely ignores the question that we agreed to decide, i.e., whether a claim of malicious prosecution may be brought under the Fourth Amendment. I would decide that question and hold that the Fourth Amendment cannot house any such claim. If a malicious prosecution claim may be brought under the Constitution, it must find some other home, presumably the Due Process Clause. I The question that was set out in Manuel's petition for a writ of certiorari and that we agreed to decide is as follows: \"[W]hether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment . This question was raised, but left unanswered, by this Court in Albright v. Oliver, 510 U.S. 266 [114 S.Ct. 807, 127 L.Ed.2d 114] (1994). Since then, the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a Fourth Amendment malicious prosecution claim is cognizable through 42 U.S.C. § 1983 (\" Section 1983\"). Only the Seventh Circuit holds that a Fourth Amendment Section 1983 malicious prosecution claim is not cognizable.\" Pet. for Cert. i (emphasis added). The question's reference to \"a malicious prosecution claim\" was surely no accident. First, the conflict on the malicious prosecution question was the centerpiece of Manuel's argument in favor of certiorari. Second, unless Manuel is given the benefit of the unique accrual rule for malicious prosecution claims, his claim is untimely," }, { "docid": "19627959", "title": "", "text": "the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong-when, for example, a judge's probable-cause determination is predicated solely on a police officer's false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward, but it has done nothing to satisfy the Fourth Amendment's probable-cause requirement. And for that reason, it cannot extinguish the detainee's Fourth Amendment claim-or somehow, as the Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. See 590 Fed.Appx., at 643-644. If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment. For that reason, and contrary to the Seventh Circuit's view, Manuel stated a Fourth Amendment claim when he sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial detention. Consider again the facts alleged in this case. Police officers initially arrested Manuel without probable cause, based solely on his possession of pills that had field tested negative for an illegal substance. So (putting timeliness issues aside) Manuel could bring a claim for wrongful arrest under the Fourth Amendment. And the same is true (again, disregarding timeliness) as to a claim for wrongful detention-because Manuel's subsequent weeks in custody were also unsupported by probable cause, and so also constitutionally unreasonable. No evidence of Manuel's criminality had come to light in between the roadside arrest and the County Court proceeding initiating legal process; to the contrary, yet another test of Manuel's pills had come back negative in that period. All that the judge had before him were police fabrications about the pills' content. The judge's order holding Manuel for trial therefore lacked any proper basis. And that means Manuel's ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights. Or put just a bit differently: Legal process did not expunge Manuel's Fourth Amendment claim because the process he received failed to establish what" }, { "docid": "19627978", "title": "", "text": "a writ of certiorari and that we agreed to decide is as follows: \"[W]hether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment . This question was raised, but left unanswered, by this Court in Albright v. Oliver, 510 U.S. 266 [114 S.Ct. 807, 127 L.Ed.2d 114] (1994). Since then, the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a Fourth Amendment malicious prosecution claim is cognizable through 42 U.S.C. § 1983 (\" Section 1983\"). Only the Seventh Circuit holds that a Fourth Amendment Section 1983 malicious prosecution claim is not cognizable.\" Pet. for Cert. i (emphasis added). The question's reference to \"a malicious prosecution claim\" was surely no accident. First, the conflict on the malicious prosecution question was the centerpiece of Manuel's argument in favor of certiorari. Second, unless Manuel is given the benefit of the unique accrual rule for malicious prosecution claims, his claim is untimely, and he is not entitled to relief. A I would first consider what I take to be the core of the question presented-whether a \"malicious prosecution claim may be brought under the Fourth Amendment.\" See ibid. Manuel asked us to decide that question because it may be critical to his ultimate success in this lawsuit. Why is that so? The statute of limitations for Manuel's claim is Illinois's general statute of limitations for personal-injury torts, see Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which requires suit to be brought within two years of the accrual of the claim, see Ill. Comp. Stat., ch. 735, § 5/13-202 (West 2010). Here is the chronology of relevant events in this case: • March 18, 2011: Manuel is arrested and brought before a county court judge, who makes the required probable-cause finding because Manuel was arrested without a warrant. • March 31, 2011: Manuel is indicted by a grand jury. • April 8, 2011: Manuel is arraigned. • May 4, 2011: An" }, { "docid": "19627958", "title": "", "text": "of liberty and drafted the Fourth Amendment to address it.\" Id., at 274, 114 S.Ct. 807. That the deprivations at issue were pursuant to legal process made no difference, given that they were (allegedly) unsupported by probable cause; indeed, neither of the two opinions so much as mentioned that procedural circumstance. Relying on Gerstein, the plurality stated that the Fourth Amendment remained the \"relevan[t]\" constitutional provision to assess the \"deprivations of liberty\"-most notably, pretrial detention-\"that go hand in hand with criminal prosecutions.\" 510 U.S., at 274, 114 S.Ct. 807 ; see id., at 290, 114 S.Ct. 807 (Souter, J., concurring in judgment) (\"[R]ules of recovery for such harms have naturally coalesced under the Fourth Amendment\"). As reflected in Albright 's tracking of Gerstein 's analysis, pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. See supra, at 917. That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong-when, for example, a judge's probable-cause determination is predicated solely on a police officer's false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward, but it has done nothing to satisfy the Fourth Amendment's probable-cause requirement. And for that reason, it cannot extinguish the detainee's Fourth Amendment claim-or somehow, as the Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. See 590 Fed.Appx., at 643-644. If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment. For that reason, and contrary to the Seventh Circuit's view, Manuel stated a Fourth Amendment claim when he sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial detention. Consider again the facts alleged in this case. Police officers initially" }, { "docid": "19627950", "title": "", "text": "criminal complaint-which in turn relied exclusively on the police department's fabrications-to support a finding of probable cause. Based on that determination, he sent Manuel to the county jail to await trial. In the somewhat obscure legal lingo of this case, Manuel's subsequent detention was thus pursuant to \"legal process\"-because it followed from, and was authorized by, the judge's probable-cause determination. While Manuel sat in jail, the Illinois police laboratory reexamined the seized pills, and on April 1, it issued a report concluding (just as the prior two tests had) that they contained no controlled substances. See App. 51. But for unknown reasons, the prosecution-and, critically for this case, Manuel's detention-continued for more than another month. Only on May 4 did an Assistant State's Attorney seek dismissal of the drug charge. See id., at 48, 101. The County Court immediately granted the request, and Manuel was released the next day. In all, he had spent 48 days in pretrial detention. On April 22, 2013, Manuel brought this lawsuit under 42 U.S.C. § 1983 against the City of Joliet and several of its police officers (collectively, the City). Section 1983 creates a \"species of tort liability,\" Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), for \"the deprivation of any rights, privileges, or immunities secured by the Constitution,\" § 1983. Manuel's complaint alleged that the City violated his Fourth Amendment rights in two ways-first by arresting him at the roadside without any reason, and next by \"detaining him in police custody\" for almost seven weeks based entirely on made-up evidence. See App. 79-80. The District Court dismissed Manuel's suit. See 2014 WL 551626 (N.D.Ill., Feb. 12, 2014). The court first held that the applicable two-year statute of limitations barred Manuel's claim for unlawful arrest, because more than two years had elapsed between the date of his arrest (March 18, 2011) and the filing of his complaint (April 22, 2013). But the court relied on another basis in rejecting Manuel's challenge to his subsequent detention (which stretched from March 18 to May 5, 2011). Binding Circuit precedent, the" }, { "docid": "19627995", "title": "", "text": "fear, inject much confusion into Fourth Amendment law. And it has the potential to do much harm-by dramatically expanding Fourth Amendment liability under § 1983 in a way that does violence to the text of the Fourth Amendment. I respectfully dissent. The Court defends this evasion on the ground that it is resolving \"the one and only Circuit split involving the decision below.\" Ante, at 922, n. 10. That is flatly wrong. As the Seventh Circuit acknowledged, its decision in this case and an earlier case on which the decision here relied, Newsome v. McCabe, 256 F.3d 747 (2001), conflict with decisions of other circuits holding that a malicious prosecution claim may be brought under the Fourth Amendment. The decision below states: \"Manuel argues that we should reconsider our holding in Newsome and recognize a federal claim for malicious prosecution under the Fourth Amendment regardless of the available state remedy. By his count, 10 other Circuits have recognized federal malicious-prosecution claims under the Fourth Amendment.\" 590 Fed.Appx. 641, 643 (C.A.7 2015). The court refused to overrule Newsome and said that \"Manuel's argument is better left for the Supreme Court.\" Ibid. Manuel's petition for a writ of certiorari repeatedly made the same point. See Pet. for Cert. 2 (\"The Seventh Circuit stands alone among circuits in not allowing a federal malicious prosecution claim grounded on the Fourth Amendment\"); id., at 10 (\"Ten Federal Circuits Correctly Hold That Malicious Prosecution is Actionable as a Fourth Amendment, Section 1983 Claim\"); ibid. (\"[E]ight circuits have held that malicious prosecution is cognizable through a Section 1983 Fourth Amendment claim\"). All of the decisions that are cited as being in conflict with the decision below involved malicious prosecution claims and are described as such. See id., at 10-11. It is certainly true that the question whether a malicious prosecution claim may be brought under the Fourth Amendment subsumes the question whether a Fourth Amendment seizure continues past a first or initial appearance, but answering the latter question does not by any means resolve the Circuit split that Manuel cited and that we took this case to" }, { "docid": "19627986", "title": "", "text": "trial. The unlawful arrest and detention would still provide grounds for recovery. Accordingly, there is no good reason why the accrual of a claim like Manuel's should have to await a favorable termination of the prosecution. For all these reasons, malicious prosecution is a strikingly inapt \"tort analog[y],\" Wilson, 471 U.S., at 277, 105 S.Ct. 1938 for Fourth Amendment violations. So the answer to the question presented in Manuel's certiorari petition is that the Fourth Amendment does not give rise to a malicious prosecution claim, and this means that Manuel's suit is untimely. I would affirm the Seventh Circuit on that basis. II Instead of deciding the question on which we granted review, the Court ventures in a different direction. The Court purports to refrain from deciding any issue of timeliness, see ante, at 919, but the Court's opinion is certain to be read by some to mean that every moment of pretrial confinement without probable cause constitutes a violation of the Fourth Amendment. And if that is so, it would seem to follow that new Fourth Amendment claims continue to accrue as long as the pretrial detention lasts. A That proposition-that every moment in pretrial detention constitutes a \"seizure\"-is hard to square with the ordinary meaning of the term. The term \"seizure\" applies most directly to the act of taking a person into custody or otherwise depriving the person of liberty. It is not generally used to refer to a prolonged detention. Dictionary definitions from around the time of the adoption of the Fourth Amendment define the term \"seizure\" as a single event-and not a continuing condition. See, e.g., 2 N. Webster, An American Dictionary of the English Language 67 (1828) (Webster) (defining \"seizure\" as \"the act of laying hold on suddenly\"); 1 S. Johnson, A Dictionary of the English Language (6th ed. 1785) (defining \"seizure\" as \"the act of taking forcible possession\"); 1 T. Dyche & W. Pardon, A New General English Dictionary (14th ed. 1771) (defining \"seize\" as \"to lay or take hold of violently or at unawares, wrongfully, or by force\"). As the Court has explained" }, { "docid": "19627947", "title": "", "text": "Justice KAGAN delivered the opinion of the Court. Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime. The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Our answer follows from settled precedent. The Fourth Amendment, this Court has recognized, establishes \"the standards and procedures\" governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). And those constitutional protections apply even after the start of \"legal process\" in a criminal case-here, that is, after the judge's determination of probable cause. See Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion); id., at 290, 114 S.Ct. 807 (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim's timeliness, to the court below). I Shortly after midnight on March 18, 2011, Manuel was riding through Joliet, Illinois, in the passenger seat of a Dodge Charger, with his brother at the wheel. A pair of Joliet police officers pulled the car over when the driver failed to signal a turn. See App. 90. According to the complaint in this case, one of the officers dragged Manuel from the car, called him a racial slur, and kicked and punched him as he lay on the ground. See id., at 31-32, 63. The policeman then searched Manuel and found a vitamin bottle containing pills. See id., at 64. Suspecting that the pills were actually illegal drugs, the officers conducted a field test of the bottle's contents. The test came back negative for any controlled substance, leaving the officers with no evidence that Manuel had committed a crime. See id., at 69. Still, the officers arrested Manuel and took him to the Joliet police station. See id., at" }, { "docid": "19627965", "title": "", "text": "tort to Manuel's constitutional claim is not malicious prosecution but false arrest, which accrues when legal process commences. See Tr. of Oral Arg. 47; Wallace, 549 U.S., at 389, 127 S.Ct. 1091 (noting accrual rule for false arrest suits). And even if malicious prosecution were the better comparison, the City continues, a court should decline to adopt that tort's favorable-termination element and associated accrual rule in adjudicating a § 1983 claim involving pretrial detention. That element, the City argues, \"make[s] little sense\" in this context because \"the Fourth Amendment is concerned not with the outcome of a prosecution, but with the legality of searches and seizures.\" Brief for Respondents 16. And finally, the City contends that Manuel forfeited an alternative theory for treating his date of release as the date of accrual: to wit, that his pretrial detention \"constitute[d] a continuing Fourth Amendment violation,\" each day of which triggered the statute of limitations anew. Id., at 29, and n. 6; see Tr. of Oral Arg. 36; see also Albright, 510 U.S., at 280, 114 S.Ct. 807 (GINSBURG, J., concurring) (propounding a similar view). So Manuel, the City concludes, lost the opportunity to recover for his pretrial detention by waiting too long to file suit. We leave consideration of this dispute to the Court of Appeals. \"[W]e are a court of review, not of first view.\" Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Because the Seventh Circuit wrongly held that Manuel lacked any Fourth Amendment claim once legal process began, the court never addressed the elements of, or rules applicable to, such a claim. And in particular, the court never confronted the accrual issue that the parties contest here. On remand, the Court of Appeals should decide that question, unless it finds that the City has previously waived its timeliness argument. See Reply to Brief in Opposition 1-2 (addressing the possibility of waiver); Tr. of Oral Arg. 40-44 (same). And so too, the court may consider any other still-live issues relating to the contours of Manuel's Fourth Amendment claim for unlawful pretrial" }, { "docid": "19627974", "title": "", "text": "125, n. 27, 95 S.Ct. 854 (emphasis added). The two exceptions-the Ninth and D.C. Circuits-have not yet weighed in on whether a Fourth Amendment claim like Manuel's includes a \"favorable termination\" element. The dissent would have us address these questions anyway, on the ground that \"the conflict on the malicious prosecution question was the centerpiece of Manuel's argument in favor of certiorari.\" Post, at 923. But the decision below did not implicate a \"conflict on the malicious prosecution question\"-because the Seventh Circuit, in holding that detainees like Manuel could not bring a Fourth Amendment claim at all, never considered whether (and, if so, how) that claim should resemble the malicious prosecution tort. Nor did Manuel's petition for certiorari suggest otherwise. The principal part of his question presented-mirroring the one and only Circuit split involving the decision below-reads as follows: \"[W]hether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process.\" Pet. for Cert. i. That is exactly the issue we have resolved. The rest of Manuel's question did indeed express a view as to what would follow from an affirmative answer (\"so as to allow a malicious prosecution claim\"). Ibid. (And as the dissent notes, the Seventh Circuit recounted that he made the same argument in that court. See post, at 923 -924, n. 1.) But as to that secondary issue, we think (for all the reasons just stated) that Manuel jumped the gun. See supra, at 920 - 922. And contra the dissent, his doing so provides no warrant for our doing so too. * * * Justice THOMAS, dissenting. I join Justice ALITO's opinion in full but write separately regarding the accrual date for a Fourth Amendment unreasonable-seizure claim. Justice ALITO suggests that a claim for unreasonable seizure based on a warrantless arrest might not accrue until the \"first appearance\" under Illinois law (or the \"initial appearance\" under federal law)-which ordinarily represents the first judicial determination of probable cause for that kind of arrest-rather than at the time of the arrest. See post, at 923, 927 (dissenting opinion); see also Wallace v. Kato," }, { "docid": "19627966", "title": "", "text": "807 (GINSBURG, J., concurring) (propounding a similar view). So Manuel, the City concludes, lost the opportunity to recover for his pretrial detention by waiting too long to file suit. We leave consideration of this dispute to the Court of Appeals. \"[W]e are a court of review, not of first view.\" Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Because the Seventh Circuit wrongly held that Manuel lacked any Fourth Amendment claim once legal process began, the court never addressed the elements of, or rules applicable to, such a claim. And in particular, the court never confronted the accrual issue that the parties contest here. On remand, the Court of Appeals should decide that question, unless it finds that the City has previously waived its timeliness argument. See Reply to Brief in Opposition 1-2 (addressing the possibility of waiver); Tr. of Oral Arg. 40-44 (same). And so too, the court may consider any other still-live issues relating to the contours of Manuel's Fourth Amendment claim for unlawful pretrial detention. For the reasons stated, we reverse the judgment of the Seventh Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Because we here review an order dismissing Manuel's suit, we accept as true all the factual allegations in his complaint. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Although not addressed in Manuel's complaint, the police department's alleged fabrications did not stop at this initial hearing on probable cause. About two weeks later, on March 30, a grand jury indicted Manuel based on similar false evidence: testimony from one of the arresting officers that \"[t]he pills field tested positive\" for ecstasy. App. 96 (grand jury minutes). Manuel's allegation of unlawful detention concerns only the period after the onset of legal process-here meaning, again, after the County Court found probable cause that he had committed a crime. See supra, at 915 - 916. The police also held Manuel in custody for several hours between" }, { "docid": "19627953", "title": "", "text": "is detained pursuant to legal process, the court stated, \"the Fourth Amendment falls out of the picture and the detainee's claim that the detention is improper becomes [one of] due process.\" Id., at 643-644 (quoting Llovet v. Chicago, 761 F.3d 759, 763 (C.A.7 2014) ). And again: \"When, after the arrest[,] a person is not let go when he should be, the Fourth Amendment gives way to the due process clause as a basis for challenging his detention.\" 590 Fed.Appx., at 643 (quoting Llovet, 761 F.3d, at 764 ). So the Seventh Circuit held that Manuel's complaint, in alleging only a Fourth Amendment violation, rested on the wrong part of the Constitution: A person detained following the onset of legal process could at most (although, the court agreed, not in Illinois) challenge his pretrial confinement via the Due Process Clause. See 590 Fed.Appx., at 643-644. The Seventh Circuit recognized that its position makes it an outlier among the Courts of Appeals, with ten others taking the opposite view. See id., at 643 ; Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99 (C.A.1 2013) (\"[T]here is now broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon probable cause extends through the pretrial period\"). Still, the court decided, Manuel had failed to offer a sufficient reason for overturning settled Circuit precedent; his argument, albeit \"strong,\" was \"better left for the Supreme Court.\" 590 Fed.Appx., at 643. On cue, we granted certiorari. 577 U.S. ----, 136 S.Ct. 890, 193 L.Ed.2d 783 (2016). II The Fourth Amendment protects \"[t]he right of the people to be secure in their persons ... against unreasonable ... seizures.\" Manuel's complaint seeks just that protection. Government officials, it recounts, detained-which is to say, \"seiz[ed]\"-Manuel for 48 days following his arrest. See App. 79-80; Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (\"A person is seized\" whenever officials \"restrain[ ] his freedom of movement\" such that he is \"not free to leave\"). And that detention was \"unreasonable,\" the complaint continues, because it was based solely on false" }, { "docid": "19627955", "title": "", "text": "evidence, rather than supported by probable cause. See App. 79-80; Bailey v. United States, 568 U.S. 186, 192, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) ( \"[T]he general rule [is] that Fourth Amendment seizures are 'reasonable' only if based on probable cause to believe that the individual has committed a crime\"). By their respective terms, then, Manuel's claim fits the Fourth Amendment, and the Fourth Amendment fits Manuel's claim, as hand in glove. This Court decided some four decades ago that a claim challenging pretrial detention fell within the scope of the Fourth Amendment. In Gerstein, two persons arrested without a warrant brought a § 1983 suit complaining that they had been held in custody for \"a substantial period solely on the decision of a prosecutor.\" 420 U.S., at 106, 95 S.Ct. 854. The Court looked to the Fourth Amendment to analyze-and uphold-their claim that such a pretrial restraint on liberty is unlawful unless a judge (or grand jury) first makes a reliable finding of probable cause. See id., at 114, 117, n. 19, 95 S.Ct. 854. The Fourth Amendment, we began, establishes the minimum constitutional \"standards and procedures\" not just for arrest but also for ensuing \"detention.\" Id., at 111, 95 S.Ct. 854. In choosing that Amendment \"as the rationale for decision,\" the Court responded to a concurring Justice's view that the Due Process Clause offered the better framework: The Fourth Amendment, the majority countered, was \"tailored explicitly for the criminal justice system, and it[ ] always has been thought to define\" the appropriate process \"for seizures of person[s] ... in criminal cases, including the detention of suspects pending trial.\" Id., at 125, n. 27, 95 S.Ct. 854. That Amendment, standing alone, guaranteed \"a fair and reliable determination of probable cause as a condition for any significant pretrial restraint.\" Id., at 125, 95 S.Ct. 854. Accordingly, those detained prior to trial without such a finding could appeal to \"the Fourth Amendment's protection against unfounded invasions of liberty.\" Id., at 112, 95 S.Ct. 854 ; see id., at 114, 95 S.Ct. 854. And so too, a later decision indicates, those" }, { "docid": "8193461", "title": "", "text": "then arrested the plaintiff pursuant to that warrant. The claim in this case is' strictly for abuse of the legal process; the complaint does not allege that McQueen or the Quest investigators effectuated the arrests of Bianchi and his colleagues, The second problem is that Juriss predates Wallace, which more clearly demarcated the lines between the cognizable constitutional torts in cases alleging wrongful arrest and prosecution. As we’ve already explained, the arrests at issue in this case came after and as a consequence of the formal initiation of criminal proceedings by indictment. Wallace teaches that once formal criminal proceedings have begun, we’re in the domain of malicious prosecution, not false arrest. And as a factual matter, the gravamen of the allegations against McQueen and the investigators is abuse of the formal legal process. . The Supreme Court has recently granted certiorari to address whether a claim for malicious prosecution is cognizable under the Fourth Amendment where the plaintiff alleges that he was held in pretrial detention without probable cause. See Manuel v. City of Joliet, 590 Fed.Appx. 641 (7th Cir.2015), cert. granted — U.S. -, 136 S.Ct. 890, 193 L.Ed.2d 783 (Jan. 15, 2016) (No. 14-9496), Manuel will be heard next term. The Court’s decision will not affect this case; here the plaintiffs were not held in pretrial detention. . With the federal claims gone, it was entirely appropriate for the judge to relinquish jurisdiction over the state-law claims and dismiss them without prejudice. See Sharp Elec. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514 (7th Cir.2009) (\"Normally, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims____”)." } ]

[ { "docid": "22378921", "title": "", "text": "against the private individual or the unincorporated small businessman.” H. R. Rep. No. 372, p. 2; see S. Rep. No. 114, pp. 2-3. As discussed above, Congress recognized that a bankrupt corporation “dissolves and goes out of business,” 112 Cong. Rec. 13817 (1966) (remarks of Sen. Ervin), thereby avoiding IRS tax claims; it was thought inequitable that a sole proprietor or other individual would remain liable after bankruptcy for the same type of claims. See generally sources cited at 278, and n. 11, supra. This inequity between a corporate officer and an individual entrepreneur, both of whom have a similar liability to the Government, frequently would turn on nothing more than whether the individual was “sophisticated” enough “to, in effect, incorporate himself.” 112 Cong. Rec. 13817 (1966) (remarks of Sen. Ervin). Were we to adopt the Court of Appeals’ approach, we would be instituting precisely the kind of “arbitrary discrimination” that § 17a (1) was designed to alleviate. 112 Cong. Rec. 13818 (1966) (statement of Sen. Ervin). In terms of statutory language and legislative history, then, the liability of respondent under Internal Revenue Code § 6672 must be held nondischargeable under Bankruptcy Act § 17a (1) (e). The judgment of the Court of Appeals is, accordingly, Reversed and remanded. Internal Revenue Code § 6672, 26 U. S. C. § 6672, provides: “Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.” Section 6671 (b) of the Code makes clear that “[t]he term 'person,' as used in [§6672], includes an officer or employee of a corporation . . . who ... is under a duty to perform the act in respect of which the violation occurs.” Section 6671" } ]

[ { "docid": "1293470", "title": "", "text": "administrative proceedings. Although the IRS may now be barred from challenging the Debtor’s eligibility, there is no compelling authority that precludes it from asserting that the Debt- or’s conduct constitutes cause for dismissal. And there is no reason to deny that relief to the IDR. CONCLUSION For the reasons set forth above, the requests of the IRS and IDR to dismiss this case are granted and the case will be dismissed. All other requests for relief are moot and will be denied for that reason. . The \"trust fund” taxes at issue in this case include federal income and social security taxes that employers must withhold from wages of their employees. See e.g., Bowlen v. United States, 956 F.2d 723 (7th Cir.1992). Under the statutory scheme for collection and payment of the withheld taxes, they constitute a special fund held in trust for the United States. See id. To protect against losses where an employer fails to comply with its withholding obligations, § 6672(a) of the Internal Revenue Code provides that \"Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over....” 26 U.S.C. § 6672(a). Id. . Hereafter, unless otherwise noted, all section references are to the bankruptcy code, 11 U.S.C. § 101 etseq. . Section 1330(a) provides that \"[o]n request of a party in interest at any time within 180 days after the date of the entry of an order of confirmation under section 1325 of this title, and after notice and a hearing, the court may revoke such order if such order was procured by fraud.” See Branchburg Plaza Assoc., L.P. v. Pesq (In re Fesq), 153 F.3d 113, 118-19 (3d Cir.1998), cert. denied, -" }, { "docid": "1181734", "title": "", "text": "Order. The IRS reasons as follows: the $227,526.81 paid by Measurematic to the IRS was the amount of the IRS’ proof of claim as of Measurematic’s Chapter 11 petition date, August 11, 1982; payment of that amount to the IRS was not made until April, 1985; post-petition interest was therefore not paid on the taxes due; interest is presently due and owing from Measurematic’s petition date, August 11, 1982 through the date of payment; and consequently, it has not completely collected those taxes once until the interest is paid. DISCUSSION AND CONCLUSIONS OF LAW Section 505(a) of the Bankruptcy Code vests jurisdiction in the Bankruptcy Court to determine the amount of a tax or of any fine or penalty relating to any tax. 3 Collier on Bankruptcy, Para. 505.4 (15th ed. 1985). As stated earlier, Measurematic in its Chapter 11 case made a motion for a determination of all taxes due the IRS, including FICA and withholding. As noted above, the IRS did not appear at that hearing, nor did it request a determination of post-petition interest due it as a secured creditor under Section 506. It did not object to the amount specified by Measurematic. The IRS claim was, therefore, fixed at $227,526.81 which was memorialized in the Order. The IRS did not appeal that Order, which is now final. Rather, it accepted the check marked “payment in full.” Apparently, the IRS is now attempting in the Turchon Chapter 13 to indirectly accomplish that which has been precluded by the Measurematic case. In United States v. Huckabee Auto Co., 783 F.2d 1546, 1548, 14 C.B.C.2d 483, 486 (11th Cir.1986), the Eleventh Circuit explains the purpose of 26 U.S.C. Section 6672, as well as the relationship between corporate and “responsible person” liability: Although denoted a penalty in the statute, the liability imposed by section 6672 is not penal in nature, Monday [v. U.S.], 421 F.2d [1210] at 1216 [(7th Cir.1970)], but is “simply a means of ensuring that the tax is paid.” Newsome [v. U.S.], 431 F.2d [742] at 745 [(5th Cir.1970)] (quoting Botta v. Scanlon, 314 F.2d 392, 393" }, { "docid": "4709643", "title": "", "text": "WALKER, Circuit Judge: The United States of America appeals from a judgment of the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge) affirming the decision of the bankruptcy court which held that priority claims under 11 U.S.C. § 726(a)(1) lose their priority status if they are tardily filed. We reverse the judgment of the district court and remand for further proceedings. BACKGROUND On September 28, 1988, Edward and Carol Vecchio (“debtors”) filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code. They listed in their schedule of debts two obligations owed to the Internal Revenue Service (“IRS”): one for $792 owed on their 1986 personal income taxes and the other for $25,000 owed as withholding tax due from New Market Manufacturing, Inc. (“New Market”). The debtors were 70% shareholders of New Market, which had filed an earlier Chapter 7 bankruptcy petition in February of 1988. The Clerk of the United States Bankruptcy Court for the Eastern District of New York sent a notice of the filing to all creditors but instructed them that it was unnecessary to file a claim because there were insufficient assets for distribution. On November 22, 1989, the Clerk sent all creditors a notice that payment of a dividend might be possible because assets had been discovered. The notice fixed February 20, 1990 as the deadline for filing proofs of claim. On January 31, 1990, the IRS filed a proof of claim for income taxes for the years 1984 and 1986, totalling $2,203.43. On April 25, 1990 and May 15, 1990, the IRS filed amended claims reasserting the individual taxes due and asserting for the first time a $17,256.51 claim for withholding and FICA taxes owed by New Market in 1987. The claim for withholding and FICA taxes was assessed against debtors individually under 26 U.S.C. § 6672 which attaches personal liability to persons who willfully fail to collect, or truthfully account for and pay over a corporation’s withholding and unemployment taxes. The IRS filed its amended claims as unsecured priority claims under 11" }, { "docid": "23316784", "title": "", "text": "bankruptcy court found that the United States presented no reason for its delay, and that the delay was prejudicial to Debtors’ case, which had been pending since 1985. The record supports these findings by the bankruptcy court. The bankruptcy court did not abuse its discretion in denying the motion to vacate on the basis of unreasonable delay. In addition, the bankruptcy court did not err by concluding that there were no grounds to vacate its May 11, 1992 order pursuant to Fed.R.Civ.P. 60(b)(4), because the judgment was not void. CONCLUSION The United States subjected itself to the bankruptcy court’s jurisdiction for purposes of allowance or disallowance of its proofs of claim. Debtors’ service of the objection and notice of hearing on the objection complied with the provisions of Fed.R.Civ.P. 7004, made applicable by Fed.R.Civ.P. 9014 in this contested matter, and the notice was consistent with procedural due process. Therefore, there were no grounds for vacating the bankruptcy court’s May 11, 1992 order for voidness under Fed.R.Bankr.P. 9024/ Fed.R.Civ.P. 60(b)(4). The bankruptcy court’s findings that the United States’ motion was unreasonably delayed were not clearly erroneous. The bankruptcy court did not abuse its discretion by denying the United States’ motion to vacate its order disallowing the IRS proofs of claim. Its order of October 22, 1993 is AFFIRMED. . Unless otherwise stated, all references to “chapter” and \"section” are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330. All references to \"rule” are to the Federal Rules of Bankruptcy Procedure, 1001-9036. . 26 U.S.C. § 6672 imposes a penalty on any persons responsible for collecting and paying over to the IRS income tax withholding and FICA tax amounts who willfully fail to do so. Bronson v. United States, 46 F.3d 1573, 1574 (Fed.Cir.1995). The penalty is assessed and collected as a tax. Id. at 1574 n. 1; United States v. Sotelo, 436 U.S. 268, 274-75, 98 S.Ct. 1795, 1799-1800, 56 L.Ed.2d 275 (1978) (funds collected or withheld as required by law were \"taxes”). . Debtors objected to five IRS claims: nos. 17 (no amount listed), 49, 50, 55 and 57. The United" }, { "docid": "18513829", "title": "", "text": "liable pursuant to § 6672 and therefore, the Bankruptcy Court’s judgment should be affirmed. The Internal Revenue Code requires employers to withhold social security and federal income taxes from their employees pay, 26 U.S.C. §§ 3102, 3402, and to hold those funds in trust for the USA, 26 U.S.C. § 7501. Because the IRS has no recourse against employees who have had these taxes withheld, the IRS is empowered by 26 U.S.C. § 6672 to impose liability on certain individuals who are deemed to be in positions to determine whether the withheld taxes are paid to the IRS. Section 6672 states in pertinent part: (a) General rule. Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.... “The purpose of the 100 percent penalty provision ‘is to permit the taxing authority to reach those [persons] responsible for the corporations’ failure to pay the taxes which are owing.’” Godfrey v. U.S., 748 F.2d 1568, 1574 (Fed.Cir.1984) (quoting White v. U.S., 372 F.2d 513, 516 (Ct.Cl.1967)). More than one person may be assessed pursuant to § 6672, and each person assessed is liable for the total amount of unpaid withholding taxes. In re Bourque, 153 B.R. 87, 92 (Bankr.D.Mass.1993). Liability pursuant to § 6672 is contingent upon a finding that the taxpayer is “responsible” and acted “willfully” within the meaning of the statute. Caterino v. U.S., 794 F.2d 1, 2 (1st Cir.1986), cert. denied, 480 U.S. 905, 107 S.Ct. 1347, 94 L.Ed.2d 518 (1987). The First Circuit has stated that in the context of § 6672, [c]ourts have explicitly given the word “responsible” a broad interpretation. They have fashioned an elastic definition predicated upon the function of an individual" }, { "docid": "23316764", "title": "", "text": "and majority shareholders in a California corporation known as All Seasons Air Pacific (“ASAP”), which also filed for bankruptcy protection. The IRS timely filed priority tax claims in Debtors’ bankruptcy case as well as in the ASAP case for the 100% penalty assessment imposed pursuant to Section 6672 of the Internal Revenue Code. The IRS’s opening brief stated that this appeal concerned two of those proofs of claim : (1) claim no. 49, filed May 6, 1988 against Patricia Levoy, in the amount of $84,497.11; and (2) claim no. 55, filed October 14,1988 against Daniel Aikens, in the amount of $63,982.41. However, at oral argument, the United States stated that the amount at issue was approximately $84,000, as reflected in claim no. 49. On or about February 10, 1992, Debtors filed a comprehensive “Notice of Objection to Claim and Objection to Creditor’s Claims,” consisting of objections to claims of several creditors, including those of the IRS, and providing notice of a hearing on the objection on March 31, 1992. The Debtors stated the following objection to IRS claims no. 49 and no. 55: Those claims were satisfied to the best of Debtors [sic] knowledge in the ASAP case. Additionally, those claims constitute claims that were erroneously assessed to the Debtor who was not a responsible party as that term is defined in the Internal Revenue Code.... Additionally, such claims constitute duplicate claims that must be denied to the extent that they constitute duplicate claims. The duplicate claims constitute the claim against Daniel R. Aikens and Patricia Levoy, which claims are based on the identical trust fund portion of taxes that purportedly were not paid. Finally, all trust fund portion of taxes were paid prior to the filing of [our] Chapter 11 case and the IRS has erroneously failed to properly credit such payments. Pamela Moore, a secretary for Debtors’ attorney, signed a proof of service on February 10, 1992, stating that on January 10, 1992, she caused the notice of objection to be mailed to the following parties on the attached mailing list: SPS — IRS P.O. Box 1431 Room" }, { "docid": "4709644", "title": "", "text": "of the filing to all creditors but instructed them that it was unnecessary to file a claim because there were insufficient assets for distribution. On November 22, 1989, the Clerk sent all creditors a notice that payment of a dividend might be possible because assets had been discovered. The notice fixed February 20, 1990 as the deadline for filing proofs of claim. On January 31, 1990, the IRS filed a proof of claim for income taxes for the years 1984 and 1986, totalling $2,203.43. On April 25, 1990 and May 15, 1990, the IRS filed amended claims reasserting the individual taxes due and asserting for the first time a $17,256.51 claim for withholding and FICA taxes owed by New Market in 1987. The claim for withholding and FICA taxes was assessed against debtors individually under 26 U.S.C. § 6672 which attaches personal liability to persons who willfully fail to collect, or truthfully account for and pay over a corporation’s withholding and unemployment taxes. The IRS filed its amended claims as unsecured priority claims under 11 U.S.C. § 507(a)(7)(C). The bankruptcy trustee moved in the bankruptcy court to expunge the IRS claim for withholding and FICA taxes as untimely. The IRS responded that a priority claim, which is paid as part of the first-tier of distribution of an estate under 11 U.S.C. § 726(a)(1), does not have to be timely filed in order to retain its priority status. The bankruptcy court refused to afford the IRS’s claim priority status under § 726(a)(1) because it was filed late. However, instead of expunging the claim, the court reclassified it as a non-priority claim that would receive third-tier distribution pursuant to § 726(a)(3). The district court affirmed the bankruptcy court’s decision, see United States v. Vecchio, 147 B.R. 303 (E.D.N.Y.1992), and this appeal followed. DISCUSSION This appeal turns primarily on our interpretation of § 726(a) of the Bankruptcy Code which spells out the order in which the assets of a Chapter 7 bankruptcy estate are distributed to unsecured creditors. It states in relevant part: (a) Except as provided in section 510 of this title" }, { "docid": "18714866", "title": "", "text": "EDWARD J. RYAN, Bankruptcy Judge. Irving Henry Saxe (“Saxe” or “the bankrupt”) filed a petition in proceedings for an arrangement pursuant to Chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 701 et seq. (1970), on March 5, 1973. Saxe was thereafter adjudicated a bankrupt on January 16, 1974, and a trustee was duly appointed. The first meeting of creditors was held on February 25, 1974, in accordance with the Bankruptcy Act. On July 2, 1973, the Internal Revenue Service (“IRS”) filed a proof of claim designated as Claim No. 43, for personal and individual income taxes due from the bankrupt for the 1971 tax year in the amount of $77,542.42. The last day to file claims in the Saxe case was August 25, 1974, see Bankruptcy Act § 57(n), 11 U.S.C. § 93(n). The IRS made no application for any extensions of this filing deadline. On April 9, 1976, the IRS levied a 100% penalty assessment against Irving H. Saxe, president and a responsible officer of Mont-will Corporation, for withholding and Federal Insurance Contribution Act (“FICA”) taxes for the second quarter of 1972 and the second quarter of 1973 in the total amount of $220,643.09, pursuant to section 6672 of the Internal Revenue Code. This assessment was made after the IRS determined that the Montwill Corporation which was adjudicated a bankrupt on January 17, 1974, and against whom the IRS timely filed a proof of claim, would not be able to collect $350,000 due from insurers, and therefore would not be able to pay off its outstanding withholding and FICA taxes. Consequently, on April 14, 1974, the IRS filed a second proof of claim in the Saxe case designated as Claim No. 61, reflecting the 100% penalty assessment. The issue herein is whether or not the IRS should be allowed to file Claim No. 61, the 100% penalty assessment, as an amendment to Claim No. 43, the claim for personal and individual income taxes due under the internal revenue laws of the United States. Section 57(n) of the Bankruptcy Act, 11 U.S.C. § 93(n) provides that: “all claims under" }, { "docid": "23316763", "title": "", "text": "OPINION OLLASON, Bankruptcy Judge: The United States of America (“the United States”) appeals the bankruptcy court’s order of October 22, 1993, which denied its motion to vacate the order disallowing claims of the Internal Revenue Service (“the IRS”). The United States contends that notice of the debtors’ objections to the proofs of claim was insufficient, pursuant to Federal Rule of Bankruptcy Procedure 7004 and that the bankruptcy court’s order was void for lack of personal jurisdiction. Alternatively, the United States contends that the bankruptcy court improperly entered a default judgment against it without satisfactory evidence as to the merits of the debtors’ objections. Fed. R.Civ.P. 55(e) (made applicable by Fed. R.Bankr.P. 7055). We AFFIRM. STATEMENT OF FACTS Patricia Levoy and Daniel Aikens (“Debtors”) filed voluntary petitions under Chapter 11, on June 24, 1985. Their cases were consolidated in bankruptcy court, and their joint plan of reorganization was confirmed on April 5, 1994. Treatment of the general unsecured creditor class under the plan has been stayed pending the outcome of this appeal. Debtors were officers, directors and majority shareholders in a California corporation known as All Seasons Air Pacific (“ASAP”), which also filed for bankruptcy protection. The IRS timely filed priority tax claims in Debtors’ bankruptcy case as well as in the ASAP case for the 100% penalty assessment imposed pursuant to Section 6672 of the Internal Revenue Code. The IRS’s opening brief stated that this appeal concerned two of those proofs of claim : (1) claim no. 49, filed May 6, 1988 against Patricia Levoy, in the amount of $84,497.11; and (2) claim no. 55, filed October 14,1988 against Daniel Aikens, in the amount of $63,982.41. However, at oral argument, the United States stated that the amount at issue was approximately $84,000, as reflected in claim no. 49. On or about February 10, 1992, Debtors filed a comprehensive “Notice of Objection to Claim and Objection to Creditor’s Claims,” consisting of objections to claims of several creditors, including those of the IRS, and providing notice of a hearing on the objection on March 31, 1992. The Debtors stated the following objection" }, { "docid": "7095269", "title": "", "text": "MEMORANDUM OPINION AND ORDER JOEL PELOFSKY, Bankruptcy Judge. H & R Ice Company is a debtor in Chapter 11 reorganization. At the time of filing, September 30, 1980, there existed accrued but unpaid withholding & FICA taxes due the United States. The proof of claim filed by the IRS on November 14, 1980 alleged a total indebtedness to the United States of $5,008.99: $3,709.52 for taxes assessed October 20,1980 and due for the first quarter of 1980; $186.59 for interest due to the date of the petition; $1,112.88 for penalty to the date of the petition. In a proof of claim filed October 8, 1981, consolidating and amending all prior proofs of claim, an additional amount of $11,157.71 was listed as owing from the third quarter of 1980 and assessed on April 20, 1981. It was also stated that the claim was subject to a counterclaim of $1,079.24. The total indebtedness claimed by the United States was $15,897.86, subject to the setoff or counterclaim. The plan of reorganization provided that the allowed tax claims were to be paid in equal quarterly installments over the period of six (6) years after the date of assessment, with interest, as permitted by § 1129(a)(9)(C) of the Code, Title 11, U.S.C. On May 8, 1981, the plan was confirmed. In January of 1982 the Internal Revenue Service (IRS), defendant in this action, informed Kenneth R. Bennett (Bennett), President and Chief Managing Officer of the debtor corporation and a party plaintiff herein, of its intent to assess a 100% penalty against him pursuant to § 6672 of the Internal Revenue Code of 1954, Title 26, U.S.C. That section states, in pertinent part, that “Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, . . . shall, ... be liable to a penalty equal to the total amount of the tax . . . not collected, or not accounted for and paid over ...” The proposed assessment is allegedly for the company’s" }, { "docid": "1178411", "title": "", "text": "ORDER GONZALEZ, District Judge. THIS CAUSE has come before the court upon the appeal taken by the United States of America from the October 24, 1984 Final Judgment Granting Permanent Injunction, 43 B.R. 647, in which the Honorable Joseph A. Gassen, United States Bankruptcy Judge for the Southern District of Florida, enjoined the Internal Revenue Service from collecting a 100% penalty assessed under Title 26 U.S.C.A., section 6672 (West Supp. 1985). For the reasons set forth below, the Final Judgment will be VACATED. In November 1982, Driscoll’s Towing Service, Inc. filed for protection under Chapter 11 of the United States .Bankruptcy Code, 11 U.S.C.A. §§ 1101-1146 (West 1979). Thereafter, the United States, through the Internal Revenue Service (“IRS”), filed a proof of claim for past-due employment taxes. In March 1984, IRS made assessments against the individual principals of the bankrupt corporation pursuant to Title 26 U.S.C.A., section 6672. The amount assessed against each responsible principal equaled 100% of the employees share of the “trust fund” portion of the employment taxes. The bankrupt then successfully initiated an adversary proceeding in the bankruptcy court to enjoin collection of the 100% penalty assessments against its principals. The bankruptcy court enjoined further collection activity, and this appeal followed. The United States argues that the bankrupt corporation lacked standing to attack the tax liability of its principals. This court agrees. Title 26 U.S.C.A., section 6672(a) provides that: “Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.... ” This section places a separate and personal obligation upon any individual responsible for the collection of taxes. Thus, by “cut[ting] through the shield of organizational form” and imposing liability upon those corporate principals actually" }, { "docid": "10281429", "title": "", "text": "Opinion for the Court filed by Circuit Judge RICH. Additional Views filed by Circuit Judge NIES. Dissenting opinion filed by Circuit Judge MAYER. RICH, Circuit Judge. Phillip Duncan Bronson (Bronson) appeals the August 5, 1993, judgment of the United States Court of Federal Claims (CFC) granting the United States’ (government’s) motion for summary judgment and denying Bronson’s cross-motion for summary judgment thereby dismissing Bronson’s complaint for a refund of penalties assessed pursuant to section 6672 of the Internal Revenue Code of 1986, 26 U.S.C. § 6672 (1988). The CFC decision is reported at Bronson v. United States, 28 Fed.Cl. 756 (1993). We affirm. BACKGROUND This is a tax case. The material facts of this case are not in dispute. On November 8, 1983, the Internal Revenue Service (IRS) notified Bronson that it proposed to assess penalties against him pursuant to 26 U.S.C. § 6672 (1988) (hereinafter § 6672). Section 6672 imposes a penalty on any person responsible for collecting and paying over to the IRS income tax withholding and employee FICA tax amounts who willfully fail to do so. These penalties are in the form of a “100% penalty.” The proposed assessment of penalties was equal to the amount withheld from the wages of employees of Re-New Manufacturing Co., Inc. (Re-New) of Everett, Washington, for taxable periods ending September 30, 1981; March 31, 1982; June 30, 1982; September 30, 1982; December 31, 1982; and March 31, 1983. During these periods, Bronson was an officer, stockholder, and the general manager of Re-New with signature authority for the company’s operating account. There is no dispute that Bronson is a “responsible person” under the statute. The penalty totaled $49,610.14. Bronson twice attempted to administratively appeal the proposed assessment but the IRS considered the appeals invalid because Bronson failed to state any reasons for his contention. On February 6, 1984, the IRS recommended that the proposed assessment be made. On March 15, 1984, Bronson filed a Chapter 11 bankruptcy petition with the United States Bankruptcy Court for the Western District of Washington. The IRS acknowledged that it was notified of this filing. However, one" }, { "docid": "18513810", "title": "", "text": "of the tax evaded, or not collected, or not accounted for and paid over.... 26 U.S.C. § 6672. Based on the assessment, the IRS seized cash assets from the debtor in the approximate amount of $63,172.13. Thereafter, in August, 1992, the debtor filed a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code, 11 U.S.C. § 1301 et seq. In November, 1992, his case was converted to one under Chapter 11,11 U.S.C. § 1101 et seq., and most recently has been converted to a Chapter 7 liquidation proceeding, 11 U.S.C. § 701 et seq. On November, 18, 1992, the IRS filed an amended proof of claim in the amount of $132,580.56, the remainder of the § 6672 penalty outstanding on that date. On or about March 22,1993, debtor filed a motion in his bankruptcy case to determine his liability for the taxes assessed and seeking a refund of the assets previously seized by the IRS. ' The United States Attorney’s Office acknowledges it received the motion, but believing the motion to be simply a request for hearing on the issues raised therein, it did not object. As a result, on April 22, 1993, the debtor’s motion was granted pursuant to Rule 10(d) of the Local Rules of the U.S. Bankruptcy Court for the District of Rhode Island (“April 22 Order”). After receiving the order granting debtor’s motion and being informed by the Bankruptcy Court Clerk’s Office that it in effect granted the debtor the relief he sought, the USA, on April 29, 1993, moved to vacate the April 22 Order. In its motion to vacate, the USA argued that the debtor’s motion only sought a hearing to determine his liability as to the taxes at issue and in the alternative, that the April 22 Order was violative of Fed.R.Civ.P. 55(e), made applicable in the bankruptcy ease by Fed.R.Bankr.P. 7055. Rule 55(e) states: No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court. Fed.R.Civ.P." }, { "docid": "13715066", "title": "", "text": "correct in that this Court did not address the issue of whether the Debtors’ 1983 federal income tax liability was dis-chargeable. Further, this Court erred in its application of the willfulness standard, although the ultimate ruling was correct. However, the Court did not err in placing the burden of proof on the IRS to show that Mr. Macagnone was the willful, responsible person pursuant to 26 U.S.C. § 6672. TAX LIABILITY OF THE RESPONSIBLE PERSON 26 U.S.C. § 6672 A penalty for non-payment of “trust fund taxes” is imposed pursuant to 26 U.S.C. § 6671. Section 6672(a) provides: any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 ... for any offense to which this section is applicable. 26 U.S.C. § 6672(a). The initial inquiry must be directed to whether the individual, whom the IRS seeks to assess the 100% penalty to, was the “responsible person.” The IRS has the burden to show that Mr. Macagnone was the responsible person and that his failure to pay over the withheld taxes was willful. In re Amici, 177 B.R. 386, 389 (Bankr.M.D.Fla.1994), rev’d on other grounds sub nom. United States v. Amici, 197 B.R. 696 (M.D.Fla.1996). Where the IRS does not make an assessment prior to the commencement of the bankruptcy case, the IRS has the burden of persuading the Court that its claim is valid. Id. (citations omitted). All reasonable inferences should be drawn in the taxpayer’s favor. George v. United States, 819 F.2d 1008,1011 (11th Cir.1987). In the present instance, it is clear that Mr. Macagnone is a responsible person within the meaning of § 6672. However, this leaves" }, { "docid": "18513808", "title": "", "text": "ORDER PETTINE, Senior District Judge. The Report and Recommendation of United States Magistrate Judge Robert W. Love-green, filed on May 17, 1995 in the above-captioned matter, is hereby accepted pursuant to 28 U.S.C. § 636(b)(1). The Magistrate Judge’s recommendation that the debtor, Edouard Gadoury’s appeal be denied is hereby approved. SO ORDERED. REPORT AND RECOMMENDATION LOVEGREEN, United States Magistrate Judge. Before the Court is the appeal of debtor, Edouard Gadoury, Jr., from two decisions of the Bankruptcy Court. The first is the Bankruptcy Court’s July 7, 1993 order (“July 7 Order”), vacating its previous order granting the debtor’s motion for a determination of tax liability and for a refund of monies seized from him by the United States of America (“USA”). The second is the Bankruptcy Court’s judgment on the merits of debtor’s motion for a determination of tax liability in favor of the USA and against debtor. This court has jurisdiction over this appeal pursuant to 28 U.S.C. §§ 158, 1334. This matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Court 32(c)(1). Based on the following analysis, I recommend that the debtor’s appeal be denied. Procedural History This litigation originates from the October 14, 1991 assessment by the United States Internal Revenue Service (“IRS”) in the amount of $190,654 against the debtor as a person responsible for the non-payment of employee withholding taxes by debtor’s employers, Sprague Metal Box and Specialty Co. (“Sprague”) and B & C Tool Co. (“B & C”), for the third and fourth quarters of 1988 pursuant to 26 U.S.C. § 6672. Section 6672 states in pertinent part: (a) General rule. Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be hable to a penalty equal to the total amount" }, { "docid": "17034403", "title": "", "text": "context of a § 6672 tax penalty. First and most important, the IRS has the option to remain outside the bankruptcy proceeding and preserve a debt for a § 6672 penalty without filing a claim in Chapter 11. This option lies in §§ 1141 and 523 of the Bankruptcy Code. Section 1141(d)(2) saves debts excepted from discharge in § 523 from the general discharge of all pre-existing debts given to the debtor by § 1141(d)(1). See 11 U.S.C. § 1141(d). The debts excepted from discharge by § 523 include taxes described in § 507(a)(8) “whether or not a claim for such tax was filed or allowed.” Id. § 523(a)(1)(A). Section 507(a)(8)(C) describes “a tax required to be collected or withheld and for which the debtor is liable in whatever capacity.” Id. § 507(a)(8)(C). The responsible person penalty of § 6672 for withholding taxes falls within § 507(a)(8)(C). See In re Vaglica, 112 B.R. 17, 18 (Bankr.E.D.Tex.1990). Therefore, the Marshall Mill § 6672. penalty would normally survive bankruptcy even if no proof of claim was filed. Accord Fein v. United States, 22 F.3d 631, 633 (5th Cir.1994) (“ ‘[L]ike any other holder of nondischargeable debt, the IRS is also free to pursue the debtor outside bankruptcy.’ ” (quoting Grynberg v. United States (In re Grynberg), 986 F.2d 367, 370 (10th Cir.1993))). Second, the normal procedure to determine the amount of a tax debt is for the debtor (or the IRS) to file a motion requesting that the bankruptcy court make the determination under 11 U.S.C. § 505. In re Horton, 95 B.R. 436, 440 (Bankr.N.D.Tex. 1989) (determining a § 6672 liability pursuant to § 505); 15 Collier on Bankruptcy ¶ TX5.04[2][b], at TX5-29 (Myron M. Sheinfeld et al. eds., 15th ed. rev.1997). Section 505 authorizes the court to determine “the amount or legality of any tax ... whether or not previously assessed.” 11 U.S.C. § 505(a)(1). This determination should be made under Rule 9014, which governs contested matters, because it does not fall within adversary proceedings as delineated by Rule 7001. See Whelan v. United States (In re Whelan), 213 B.R." }, { "docid": "23316786", "title": "", "text": "States has not appealed the bankruptcy court’s disallowance of claims nos. 17, 50 and 57. It conceded that claim no. 50 in the amount of $112,534.81, filed on May 1, 1987 against Daniel Aikens, was a duplicate of the tax liability in claim no. 55, but which erroneously included prepetition penalties and interest. The United States alleged that it had no record of proof of claim no. 57 in the amount of $75,480.12. . The record, including the declaration of IRS bankruptcy advisor Dennis Ciesiel, shows that, apparently, the tax reflected in claim no. 55 was abated by the IRS because it was assessed in violation of the automatic stay. . The bankruptcy court from the District of Columbia recently found these cases irrelevant when deciding a motion to dismiss a complaint for lack of personal jurisdiction where the defendant had filed a proof of claim: “The focus in both cases [Granfinanciera and Langenkamp ] on whether the claims against the defendants were equitable claims instead of claims at law was necessary to determine whether there was a right to a jury trial. Such a determination is irrelevant to [the] motion to dismiss as personal jurisdiction is unaffected by the equitable or legal character of the plaintiff's claims.” In re American Export Group Intern. Services, Inc., 167 B.R. 311, 315 (Bankr.D.D.C.1994). The court held that the filing of a proof of claim is analogous to filing a complaint in the bankruptcy case, and thereby constitutes subjection to the bankruptcy court's jurisdiction for purposes of the claim allowance proceeding. Id. at 313-315 (citing cases). . For recent cases construing Langenkamp, see In re Parker North American Corp., 24 F.3d 1145, 1149-56 (9th Cir.1994) (jurisdiction affected by FIRREA); In re Conejo Enter., Inc., 174 B.R. 814, 818-20 (C.D.Cal.1994) (in case involving contract cause of action, bankruptcy court held that it must make case-by-case analysis of court's jurisdiction); In re Griffin, 143 B.R. 247, 248-49 (Bankr.D.Idaho 1992) (creditors who filed adversary proceeding for fraud and conversion as well as for determination of nondischargeability of debt triggered process of allowance and disal-lowance of claims," }, { "docid": "1184435", "title": "", "text": "its review of these signed tax returns, the IRS informed Morimoto of its determination of the amount of taxes, including penalties and interest, that she owed for the years 1982 through 1992. We note that Morimoto’s appellate brief is virtually incomprehensible, as it merely consists of an exhaustive-recitation of innumerable bankruptcy and federal tax statutes and rules. To the extent Morimoto’s brief can be comprehended at all, the essence of her argument appears to be that the IRS’ determination in its proof of claim of the amount of her tax liabilities was fatally defective, both procedurally and substantively, under the various statutes and rules cited in her brief. Given that Morimoto submitted ten years of signed tax returns to the court and by doing so acknowledged that she owes taxes to the IRS, we believe her position concerning the amount of taxes owed to be irrelevant to the issue before us. Finally, the record reflects that despite various indications by Morimoto that she might be able to propose a plan which provided for full payment of taxes, no such plan was ever forthcoming. Under the totality of the circumstances, therefore, we believe this appeal to be without merit and the bankruptcy court’s order to be appropriate. V. CONCLUSION Under the totality of the circumstances described above, the bankruptcy court neither abused its discretion nor committed clear error in granting the IRS’ motion to dismiss Morimoto’s Chapter 13 case. Accordingly, we AFFIRM. . Unless otherwise indicated, all Chapter, Section and Rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330 and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. . The State of Hawaii joined the IRS' objections and asserted that Morimoto had similarly failed to file state tax returns. . We accordingly need not address the IRS' alternative argument concerning the propriety of dismissal of Morimoto's case for failure to propose a confirmable plan." }, { "docid": "23316785", "title": "", "text": "United States’ motion was unreasonably delayed were not clearly erroneous. The bankruptcy court did not abuse its discretion by denying the United States’ motion to vacate its order disallowing the IRS proofs of claim. Its order of October 22, 1993 is AFFIRMED. . Unless otherwise stated, all references to “chapter” and \"section” are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330. All references to \"rule” are to the Federal Rules of Bankruptcy Procedure, 1001-9036. . 26 U.S.C. § 6672 imposes a penalty on any persons responsible for collecting and paying over to the IRS income tax withholding and FICA tax amounts who willfully fail to do so. Bronson v. United States, 46 F.3d 1573, 1574 (Fed.Cir.1995). The penalty is assessed and collected as a tax. Id. at 1574 n. 1; United States v. Sotelo, 436 U.S. 268, 274-75, 98 S.Ct. 1795, 1799-1800, 56 L.Ed.2d 275 (1978) (funds collected or withheld as required by law were \"taxes”). . Debtors objected to five IRS claims: nos. 17 (no amount listed), 49, 50, 55 and 57. The United States has not appealed the bankruptcy court’s disallowance of claims nos. 17, 50 and 57. It conceded that claim no. 50 in the amount of $112,534.81, filed on May 1, 1987 against Daniel Aikens, was a duplicate of the tax liability in claim no. 55, but which erroneously included prepetition penalties and interest. The United States alleged that it had no record of proof of claim no. 57 in the amount of $75,480.12. . The record, including the declaration of IRS bankruptcy advisor Dennis Ciesiel, shows that, apparently, the tax reflected in claim no. 55 was abated by the IRS because it was assessed in violation of the automatic stay. . The bankruptcy court from the District of Columbia recently found these cases irrelevant when deciding a motion to dismiss a complaint for lack of personal jurisdiction where the defendant had filed a proof of claim: “The focus in both cases [Granfinanciera and Langenkamp ] on whether the claims against the defendants were equitable claims instead of claims at law was necessary to determine whether" }, { "docid": "18513809", "title": "", "text": "disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Court 32(c)(1). Based on the following analysis, I recommend that the debtor’s appeal be denied. Procedural History This litigation originates from the October 14, 1991 assessment by the United States Internal Revenue Service (“IRS”) in the amount of $190,654 against the debtor as a person responsible for the non-payment of employee withholding taxes by debtor’s employers, Sprague Metal Box and Specialty Co. (“Sprague”) and B & C Tool Co. (“B & C”), for the third and fourth quarters of 1988 pursuant to 26 U.S.C. § 6672. Section 6672 states in pertinent part: (a) General rule. Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be hable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.... 26 U.S.C. § 6672. Based on the assessment, the IRS seized cash assets from the debtor in the approximate amount of $63,172.13. Thereafter, in August, 1992, the debtor filed a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code, 11 U.S.C. § 1301 et seq. In November, 1992, his case was converted to one under Chapter 11,11 U.S.C. § 1101 et seq., and most recently has been converted to a Chapter 7 liquidation proceeding, 11 U.S.C. § 701 et seq. On November, 18, 1992, the IRS filed an amended proof of claim in the amount of $132,580.56, the remainder of the § 6672 penalty outstanding on that date. On or about March 22,1993, debtor filed a motion in his bankruptcy case to determine his liability for the taxes assessed and seeking a refund of the assets previously seized by the IRS. ' The United States Attorney’s Office acknowledges it received the motion, but believing the motion to" } ]

[ { "docid": "18136311", "title": "", "text": "in this case, was discovered in plain view in appellant’s apartment before he made the challenged incriminating admissions. II The second question presented in this appeal is whether the military judge erred in allowing a civilian landlord to testify to appellant’s poor military character. See generally Mil.R.Evid. 404(a)(1), Manual for Courts-Martial, United States, 1984. Previously, the defense had called two senior enlisted military members during its case-in-chief to testify to appellant’s good military character. (R. 367-72; 377-80) The defense offered this evidence to support its contention that appellant did not commit the charged offenses. See United States v. Piatt, 17 MJ 442, 445-46 (CMA 1984). The Government offered the challenged testimony of the landlord to rebut the defense evidence of good military character, and the defense objected based on this witness’ qualifications to provide such testimony. (R. 385) Mil.R.Evid. 405(a) provides: Rule 405. Methods of proving character (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (Emphasis added.) In United States v. Toro, 37 MJ 313, 317 (1993), cert. denied, 510 U.S. 1091, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994), this Court commented on the foundation required before such opinion evidence is admitted at a court-martial: To lay a proper foundation for opinion evidence, the proponent must show that the character witness personally knows the witness and is acquainted with the witness well enough to have had an opportunity to form an opinion of the witness’ character for truthfulness. In United States v. Per-ner, 14 MJ 181, 184-85 (CMA 1982), this Court held that an enlisted psychiatric technician who “had seen” the accused’s “wife professionally” on three occasions did not enjoy a sufficiently close relationship to express an opinion as to untruthfulness. Appellant argues that Mr. Graham, appellant’s civilian landlord, was not qualified to offer an opinion on his military character. (R. 385-87) See also United States v." } ]

[ { "docid": "3533824", "title": "", "text": "counsel, who raised no objection to the form of the oath or the procedure of the direct testimony, conducted an extensive cross-examination. The following day, C was recalled by the trial counsel, was once again properly sworn, and testified in amplification of her prior testimony. Military Rule of Evidence 603, Manual for Courts-Martial, United States (2000 ed.), requires that, before testifying, a witness “shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.” The rule was written in this fashion “to permit atheists, conscientious objectors, children, and individuals with emotional difficulties to satisfy the basic criterion.” Stephen A. Saltzburg, et al., Military Rules of Evidence Manual, § 603.02 (5th ed.2003). The language of Mil. R. Evid. 603 recognizes the trend in federal civilian courts and military courts toward allowing all witnesses to testify and allowing the members to receive all arguably reliable evidence and decide for themselves what weight each piece of evidence is to be given. United States v. Morgan, 31 M.J. 43, 47 (C.M.A.1990)(citing Saltzburg, Military Rules of Evidence Manual 492 (2nd ed.1986)); see also United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir.1982). Assuming without deciding that, under the circumstances of this ease, the aborted truth or falsity inquiry with C prior to taking her direct testimony was insufficient to satisfy Mil. R. Evid. 603, we conclude that the appellant forfeited the issue on appeal by his failure to raise the issue at trial. The military courts have had the opportunity to address the sufficiency of the oath administered to child witnesses, but have not directly addressed the issue of not having the oath administered at all prior to testimony. See Morgan, 31 M.J. 43; United States v. Allen, 13 M.J. 597 (A.F.C.M.R.1982). Federal courts, however, have addressed the issue directly and repeatedly, applying the doctrine of waiver when no objection is made at trial. It is well settled that the swearing of a witness is waived by failure to" }, { "docid": "22460038", "title": "", "text": "called Wingart’s commander or some other person to testify as a court witness, that witness would have been subject to cross-examination about his testimony. If he expressed an opinion as to the accused’s character, he could be cross-examined about that opinion; and, in the judge’s discretion, the cross-examination could include questions about specific instances of conduct on the accused’s part which tended to impeach the opinion. In this context, the Air Force Court of Military Review equated cross-examination to extrinsic evidence and stated that “[allowing trial counsel to submit rebuttal will be similar to allowing both parties to cross-examine a witness called by the court.” See United States v. Smith, 16 M.J. 694, 706 (1983). This equation, however, is faulty, since on many occasions much greater leeway is allowed by the Manual in cross-examination than in the introduction of extrinsic evidence. For example, R.C.M. 1001(b)(5), which concerns “Evidence of rehabilitative potential,” provides that “[o]n cross-examination, inquiry is allowable into relevant and specific instances of conduct.” (Emphasis added.) This language does not authorize use of extrinsic evidence concerning “instances of conduct” to support or contradict an opinion as to an accused’s “rehabilitative potential”; and, unless admissible for some other reason, such “instances” may not be proved by extrinsic evidence. Similarly, under the Military Rules of Evi dence, a witness may be cross-examined as to matters — such as misbehavior on his part — which affect his credibility, see Mil. R.Evid. 611(b); but, apart from convictions of crime, specific instances of misconduct by a witness may not be proved by extrinsic evidence to attack or support his credibility, see Mil.R.Evid. 608(b). Yet a third example appears in Mil.R.Evid. 405(a), which permits “inquiry ... into relevant specific instances of conduct” during cross-examination in order to test the basis of a witness’ testimony as to reputation or opinion of\" a person’s character trait but which makes no provision at all for production of extrinsic evidence of such conduct. Under R.C.M. 1001(d), the Military Rules of Evidence may sometimes be relaxed as to evidence in rebuttal or surrebuttal during the sentencing proceedings. However, this prior" }, { "docid": "375343", "title": "", "text": "with appellant, who was a platoon sergeant; that appellant “is an outstanding Sergeant First Class, an outstanding soldier” who “does his job”; that he would believe appellant under oath; that appellant’s reputation in the military community for truthfulness and honesty is that “he is a truthful NCO____[h]e’s believable”; that appellant “is a law-abiding character” with an “outstanding” reputation for being a law-abiding person; that appellant is a “peaceful type” of individual whose community reputation for peacefulness is “Good. Outstanding.” Thus, we note that the trial record reflects that appellant’s general military character traits as an “outstanding Sergeant First Class” and “outstanding soldier” who “does his job” were introduced into evidence without objection, although the military judge’s instructions to the members neither required them to disregard this testimony nor provided them with guidance as to how it could be utilized in this particular form. The relevant rule for the introduction of character evidence is found in the Manual For Courts-Martial, United States, 1984, Military Rules of Evidence [hereinafter Mil.R.Evid.] 404. We are satisfied that in promulgating this rule the Presi dent intended, as did the Joint Service Committee on Military Justice, “to allow the defense to introduce evidence of good military character when that specific trait is pertinent.” M.C.M., 1984, Analysis to Mil. R.Evid. 404(a)(1), App. 22, A22-32; see also United States v. Court, 24 M.J. 11, 14 (C.M.A.1987); United States v. Vandelinder, 20 M.J. 41, 44 (C.M.A.1985). Good military character clearly was intended to be a “pertinent trait” in some cases, and “it is the substance of the alleged misconduct which is pivotal to a determination whether such evidence is ‘pertinent.’ ” Court, 24 M.J. at 14. We believe, based on the nature and elements of the charges and their specifications, together with the circumstances surrounding appellant’s off-post, off-duty rape and kidnapping of a German female, that the portion of the direct evidence of appellant’s military character which was excluded from evidence was not pertinent within the meaning of Mi.R.Evid. 404(a)(1). In this regard, we find the facts of this case clearly distinguishable from United States v. Piatt, 17 M.J." }, { "docid": "12031765", "title": "", "text": "know?” questions appears indisputable. See, e.g., Awkard [v. United States], 352 F.2d [641] at 643-644, [D.C.Cir.1965]; [United States v.] Midkiff, 15 M.J. [1043] at 1047 [NMCMR 1983]; Military Rules of Evidence Manual, supra at 176; see also Michelson [v. United States], 335 U.S. at 480 n.17, 486, 69 S.Ct. [213] at 221 n.17, 223. In the application of this balancing test, the trial judge is universally recognized as exercising “wide discretion,” which is nevertheless “accompanied by heavy responsibility ... to protect the practice from any misuse.” Michelson [v. United States], 335 U.S. at 480, 69 S.Ct. at 221. This allocation of “wide discretion” to the trial judge naturally brings into play the corollary principle that his rulings in this area are to be reversed only when he has abused that discretion. 21 M.J. at 994 (1986) (footnotes omitted). As did the Court of Military Review, we find no abuse of discretion in the judge’s admission of the evidence for the limited purpose stated. However, even if the military judge erred, the evidence of appellant’s guilt was so overwhelming on this record that he simply could not have been prejudiced by the questions. The decision of the United States Army Court of Military Review is affirmed. Judge SULLIVAN concurs. . Defense counsel specifically asserted such a theory in final argument on the merits. Further, the evidence could not have been proffered to bolster appellant’s character for truthfulness because Mil.R.Evid. 608(a)(2), Manual for Courts-Martial, United States, 1969 (Revised edition), forbids such bolstering until after a witness' character for truthfulness has been attacked, and that had not yet occurred. . On this record, the Government’s “cross-examination” is styled \"redirect examination,” since the defense opened up this line of questioning on what is styled \"cross-examination.” Needless to say, had it been the prosecution that introduced the reputation or opinion evidence, Mil. R.Evid. 404(a)(1), the defense could have inquired into \"specific instances of conduct.\" Mil. R.Evid. 405(a). . Thus, this opinion should not be read as sanctioning impeachment by lack of knowledge of investigations, arrest, preferral of charges, etc. It is the information in the" }, { "docid": "3841533", "title": "", "text": "as an aggravating circumstance under R.C.M. 1001(b)(4)). Evidence of this nature appropriately may be considered as an aggravating circumstance because it reflects the true impact of crimes upon the victims. Mullens, 29 M.J. at 400. The present case is the appellant’s second general court-martial for sexual misconduct involving one of his children in their home. Further, as the appellant himself argued, the periods of time during which the appellant committed these offenses on both of his victims in their home overlap. The military judge, after considering Prosecution Exhibit 4, excluded Prosecution Exhibit 3. Even though the trial counsel did not specifically offer Prosecution Exhibit 3 (or Prosecution Exhibit 4) for the purpose of evidence in aggravation under R.C.M. 1001(b)(4), “there would be little point in setting aside the sentence if the challenged evidence clearly would be admissible at a rehearing.” Win-gart, 27 M.J. at 134. Accordingly, we conclude that the military judge could have admitted evidence of the underlying “facts and circumstances” surrounding the appellant’s other child sexual offenses occurring in the home as they were directly related to the instant charges and part of the appellant’s concurrent and ongoing continuous course of conduct involving his children. This evidence was relevant, not cumulative, and properly before the court under R.C.M. 1001(b)(4). See generally United States v. Vickers, 13 M.J. 403, 404 (C.M.A.1982)(citing Paragraph 75b(3) of the MCM, 1969) (Revised ed.). Furthermore, the appellant’s misconduct for which he was convicted at his first court-martial, except for the adultery misconduct, is also the same type of evidence of similar crimes in child molestation eases that Congress mandated “is admissible and may be considered for its bearing on any matter to which it is relevant.” Military Rule of Evidence 414(a), Manual for Courts-Martial, United States (2000 ed.); see United States v. McDonald, 53 M.J. 593, 595 (N.M.Ct.Crim.App.2000)(eoncluding before findings that under Mil. R. Evid. 414, evidence of similar crimes in child molestation cases is admissible and may be considered on any matter to which it is relevant, subject to the balancing test contained in Mil. R. Evid. 403 ), aff'd, 55 M.J. 173" }, { "docid": "12031767", "title": "", "text": "prosecution’s hands here that distinguishes this case. EVERETT, Chief Judge (concurring in the result): The basis for the military judge’s permitting the challenged questions of Sergeant Hamilton was Mil.R.Evid. 405(a), Manual for Courts-Martial, United States, 1969 (Revised edition). In addition, he performed the balancing exercise required under Mil. R.Evid. 403 and concluded that the questions’ probative value outweighed their risk of unfair prejudice. In both respects, I disagree. As the majority opinion notes, Mil.R. Evid. 404(a)(1) permits the defense to offer “[ejvidence of a pertinent trait of the character of the accused” and permits “the prosecution to rebut the same.” Mil.R. Evid. 405(a) expressly permits such character trait to be proved “by testimony in the form of an opinion.” Pursuant to this provision, the defense elicited Sergeant Hamilton’s opinion of Pearce’s honesty. Thereafter, the prosecution sought to test the validity of that opinion by inquiring, over defense objection, whether, in arriving at it, Hamilton had been aware that, during the time frame in which he had known Pearce, the latter had been “a suspect and was under investigation by the CID for the larceny of four tires and other items from a Buick Regal, the replacement value of which was approximately $950.00.” The authority claimed by the Government and relied upon by the military judge in permitting this question was the second sentence of Mil.R.Evid. 405(a), which states: “On cross-examination, inquiry is allowable into relevant specific instances of conduct.” (Emphasis added.) My concern is whether Pearce’s having been under investigation by the CID for a larceny several years earlier is a “specific instance[] [of] conduct” of Pearce so as to allow prosecution inquiry about it. Logically, the fact that someone is a suspect in another’s mind is not an act of the suspect. In other words, B’s suspecting A is B’s “conduct” and not A’s. In Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), on which the majority opinion relies, the Supreme Court allowed a defense character witness to be asked whether the defendant had been “arrested for receiving stolen goods.” Id. at 472," }, { "docid": "2639281", "title": "", "text": "questions, focusing mainly on whether the victim had ever reported these incidents to others, and when that may have occurred. Trial defense counsel continued to object that the testimony called for hearsay. Trial counsel then proposed amending the questions to focus on the fact of the report, but to avoid any discussion of the substance of the report in order to avoid eliciting hearsay. Trial defense counsel continued to object on the grounds that the testimony constituted an implied assertion and was therefore impermissible hearsay, and also that its prejudicial effect outweighed its probative value under Mil. R. Evid. 403. After performing the proper balancing test in Mil. R. Evid. 403, the military judge overruled the objection. The military judge allowed trial counsel to ask the victim whether, before speaking with law enforcement authorities, she ever had conversations with anyone about these alleged incidents, whom she conversed with, and when was the first conversation. The victim’s boyfriend testified later in the hearing. Over defense objection, he was permitted to testify that he had a conversation with the victim about the allegations, when that conversation occurred, and the victim’s demeanor during the conversation. He did not testify about the substance of the conversation. The appellant maintains the military judge abused his discretion in allowing this testimony because it was inadmissible hearsay. We find no abuse of discretion. As a general rule, hearsay is not admissible in evidence. Mil. R. Evid. 802. Hearsay is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Mil. R. Evid. 801(c). A military judge’s decision to admit evidence will not be overturned on appeal absent a clear abuse of discretion. United States v. Kelley, 45 M.J. 275, 279 (1996). In this case, the military judge allowed the questions on the theory that the testimony at issue did not concern an out-of-court statement. In fact, the victim never informed the members what she related to her boyfriend. Instead, she testified only that she had a conversation" }, { "docid": "3841534", "title": "", "text": "were directly related to the instant charges and part of the appellant’s concurrent and ongoing continuous course of conduct involving his children. This evidence was relevant, not cumulative, and properly before the court under R.C.M. 1001(b)(4). See generally United States v. Vickers, 13 M.J. 403, 404 (C.M.A.1982)(citing Paragraph 75b(3) of the MCM, 1969) (Revised ed.). Furthermore, the appellant’s misconduct for which he was convicted at his first court-martial, except for the adultery misconduct, is also the same type of evidence of similar crimes in child molestation eases that Congress mandated “is admissible and may be considered for its bearing on any matter to which it is relevant.” Military Rule of Evidence 414(a), Manual for Courts-Martial, United States (2000 ed.); see United States v. McDonald, 53 M.J. 593, 595 (N.M.Ct.Crim.App.2000)(eoncluding before findings that under Mil. R. Evid. 414, evidence of similar crimes in child molestation cases is admissible and may be considered on any matter to which it is relevant, subject to the balancing test contained in Mil. R. Evid. 403 ), aff'd, 55 M.J. 173 (C.A.A.F.2001); see also United States v. LeCompte, 131 F.3d 767, 769 (8th Cir.1997)(recognizing before findings “the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible ... ”); United States v. James, 60 M.J. 870, 872-73 (A.F.Ct.Crim.App.2005)(concluding before findings that Mil. R. Evid. 414 does not limit admissibility of evidence of similar crimes in child molestation eases). In child molestation cases prosecuted in federal courts, as in trials by courts-martial, evidence of prior convictions involving child molestation is without question admissible during presentencing. See Fed.R.Crim.P. 32 (Sentencing and Judgment)(applying United States Sentencing Guidelines enhancements); R.C.M. 1001(b)(3). From the plain reading of both Fed.R.Evid. 414(a) and Mil. R. Evid. 414(a), it is equally clear, and we conclude, that Congress intended for evidence of similar crimes involving child molestation to be admissible also during the presentencing phase of a trial, not just on the merits. However, while congressional intent has clearly been given effect within the federal judiciary by Fed.R.Crim.P. 32, the President has not explicitly implemented Congress’ intent by amending R.C.M. 1001(b)(4), or" }, { "docid": "8455319", "title": "", "text": "demonstrate propensity. Additionally, a properly crafted spillover instruction protects the presumption of innocence and ensures that the prosecution must prove each element of each offense beyond a reasonable doubt. Id. As the CAAF explained, this does not offend the Constitution: “ ‘Individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts.’ ” Id. (quoting Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Next, the appellant argues that the military judge erred by not properly applying the procedural safeguards necessary to vet Mil. R. Evid. 413 evidence. We disagree. “When a military judge articulates his properly conducted M.R.E. 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion.” Solomon, 72 M.J. at 180 (citation omitted). The military judge in this case articulated his ruling on the record, both orally and in writing, and provided detailed analysis. First,.he addressed each of three threshold determinations and found them met. The appellant concedes that the two sets of charged offenses “facially meet these criteria.” He then conducted the Mil. R. Evid. 403 balancing test, considering each of the factors under Wright. The appellant asserts the military judge erred when determining the first factor: strength of proof of the prior act. In his written findings, the military judge stated that “[t]he ‘prior acts’ in this ease will be proven by the alleged victims’ te.stimony which will be subject to cross examination by defense counsel and questions by the members[.]” The appellant avers' this effectively bypassed Mil. R. Evid. 403 and this factor was not determined until the completion of the Government’s case. We find that this did not amount to an abuse of discretion. The military judge was not merely deferring to see what the evidence would be at trial; part of the submissions he considered were statements and pri- or testimony of both complaining witnesses as well as other evidence. In conducting his balancing, the military judge was entitled" }, { "docid": "8455314", "title": "", "text": "to each and every element of each offense charged. Proof of one charged offense carries with it no inference that the accused is guilty of any other charged offense. The TDC, having lost his motion to sever, did not object to these instructions and, in fact, upon his request, the military judge repeated them after closing arguments. Law We review a military judge’s decision to admit evidence under Mil. R. Evid. 413 for an abuse of discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F.2013). Whether members were properly instructed and whether application of a Military Rule of Evidence was constitutional are questions of law that we review de novo. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F.2002); see also United States v. Wright, 53 M.J. 476 (C.A.A.F.2000). Mil. R. Evid. 413(a) provides: In a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. The evidence may be considered on any matter to which it is relevant. “[I]nherent in M.R.E. 413 is a general presumption in favor of admission of evidence.” United States v. Berry 61 M.J. 91, 96 (C.A.A.F.2005) (citing Wright, 63 M.J. at 482-83). There are three threshold requirements before evidence may be admitted under Mil. R. Evid. 413: 1. The appellant is charged with an offense of sexual assault; 2. The evidence proffered is evidence of the appellant’s commission of another offense of sexual assault; and 3. The evidence is relevant under Mil. R. Evid. 401 and 402. Wright, 63 M.J. at 482. If the evidence passes those threshold requirements, the military judge must then apply the balancing test under Mil. R. Evid. 403, considering the following factors: strength of the proof of the prior act; probative weight of the evidence; potential to present less prejudicial evidence; possible distraction of the facbfinder; time needed to prove the prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties. Id. The military judge should make detailed findings on the record; failure to “sufficiently articulate his balancing on" }, { "docid": "13649650", "title": "", "text": "reason to testify falsely in this regard, that Appellant had twice asked him for some marijuana. After a careful review of the entire record, we are able to conclude, beyond a reasonable doubt, that Appellant committed the offense of wrongfully and knowingly using marijuana as charged. Assignment of Error II—Testimony Concerning Association with Known Drug Users Citing United States v. Perry, 37 M.J. 363 (C.M.A.1993), Appellant next contends that the military judge erred to his substantial prejudice by allowing testimony concerning his association with known drug users. In Perry our superior Court held that evidence of knowledge of drugs users did not make the accused’s own drug use “more or less probable.” Id. at 364. He argues that this evidence was prejudicial in that it tended to prove only “guilt by association.” Id. Once an accused has placed his character at issue as a defense to drug prosecutions, the prosecution may rebut this evidence by questioning defense character witnesses, including the accused, about relevant instances of specific conduct. United States v. Pearce, 27 M.J. 121, 123 (C.M.A.1988); Mil. R. Evid. 404(a)(1). Any such rebuttal evidence must be relevant under Mil. R. Evid. 401 and 402, and its probative value cannot be substantially outweighed by its prejudicial effect. Pearce, 27 M.J. at 124-25; Mil. R. Evid. 403. Even though a trait of character is admissible, the Military Rules of Evidence prescribe the form that evidence may take. Mil. R. Evid. 405(a) provides: Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. When a military judge rules on an evidentiary objection such as this one, we are to apply an abuse-of-diseretion standard. United States v. Sullivan, 42 M.J. 360, 363 (1995); United States v. Orsburn, 31 M.J. 182, 187 (C.M.A.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991). In this case, Appellant raised the defense of good" }, { "docid": "23171087", "title": "", "text": "character unless proof of that trait would have a reasonable tendency to show that it was unlikely that he committed the particular offense charged. Para. 138/(2), Manual for Courts-Martial, 1951; cf. para. 138/(2), Manual for Courts-Martial, United States, 1969 (Revised edition); para. 1256, Manual for Courts-Martial, U.S. Army, 1949. Since September 1, 1980, when the Military Rules of Evidence took effect, the defense may offer only “[e]vidence of a pertinent trait of the character of the accused.” Mil. R. Evid. 404(a)(1). This change has produced considerable confusion and has required this Court to determine in several cases what traits of character are “pertinent.” See, e.g., United States v. Kahakauwila, 19 M.J. 60 (C.M.A. 1984); United States v. McNeill, 17 M.J. 451 (C.M.A. 1984); United States v. Piatt, 17 M.J. 442 (C.M.A. 1984); United States v. Clemons, 16 M.J. 44 (C.M.A. 1983). In the present case, appellant claimed that he was entitled to offer evidence of his “good military character” because he was being prosecuted under Article 92 for disobedience of Naval Regulations. In his view, reception of the evidence was dictated by the comment in the Drafters Analysis that “[e]vidence of good military character would be admissible, for example, in a prosecution for disobedience of orders.” Appendix 18, 1969 Manual, supra. Contrariwise, the military judge reasoned that — although charged under Article 92— appellant really was being prosecuted for possession, transfer, and sale of a controlled substance, in violation of Article 134, UCMJ, 10 U.S.C. § 934. Unlike the “disobedience” contemplated by the Drafters Analysis, this misconduct was not uniquely military; and so “good military character” was not “pertinent.” We agree that admissibility of this character evidence in a drug case should not hinge on whether the prosecution is under Article 92; Article 134; or the recently enacted Article 112a, UCMJ, 10 U.S.C. § 912a. However, this premise leads us to a different conclusion from the military judge. The Drafters Analysis makes clear that — whatever the term “trait” means in Mil. R. Evid. 404(a)(1) — “good military character” is a “trait.” We can only conclude that this trait was" }, { "docid": "23171094", "title": "", "text": "or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. From this language and that of Mil. R. Evid. 405(b), it is clear that an accused usually is not allowed to offer through his character witnesses specific instances of his prior good conduct. Such evidence is considered too distracting and time consuming. Thus, specific instances of conduct can only be introduced through cross-examination, unless “character or a trait of character of a person is an essential element of an offense or defense.” Mil. R. Evid. 405(b). Enlisted Performance Reports and similar documents frequently recite specific instances of a servicemember’s conduct. Indeed, rating officials are often encouraged to support their general evaluations by specific illustrations. Therefore, these performance reports — as in this case — may contain a substantial amount of information which is inadmissible under Mil. R. Evid. 405. In this connection, considerable discretion must be allowed the trial judge. For example, he may receive Enlisted Performance Reports in evidence with instructions for the court members to disregard specific instances of conduct described therein. This course is appropriate if the judge believes that the court members, who often are experienced in reading such documents, will readily be able to sort out the portions which they should consider with respect to the accused’s character. Other alternatives are to redact or cover a portion of the document, or to. require that the parties stipulate as to the material contents of the document and only receive the stipulation in evidence. In the case at bar, the judge never got to the point of exercising his discretion as to how the evidence should be received because he proceeded on the erroneous premise that evidence of “general military character” was not “pertinent” to the charge. Thus, his ruling cannot be sustained on the theory that he acted within his discretion by disapproving the form in which the evidence was being submitted. Ill Senior Judge Gladis concluded that appellant was prejudiced by the error in excluding evidence of his “good military character”; and we give great" }, { "docid": "23171093", "title": "", "text": "such as promotion, reassignment, and separation. Therefore, whether or not the Reports offered by appellant were labelled “service records” by naval-personnel-accounting directives, they were admissible by reason of the same policy that allows reception in evidence of “service records” and other documents specified in Mil. R. Evid. 803(6) and (8). Thus, the opinions about a service-member’s military character contained in Enlisted Performance Reports are admissible as “other written statements” within the meaning of Mil. R. Evid. 405(c). The admissibility of these opinions fulfills an important purpose of Mil. R. Evid. 405(c) by permitting a servicemember to reap the benefits of the “good military character” he has demonstrated in years past, even though because of death, distance, or other reasons, his former superiors and associates may be unavailable to testify for him at his trial. Records like those involved here present a special problem. Mil. R. Evid. 405(a) states: In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. From this language and that of Mil. R. Evid. 405(b), it is clear that an accused usually is not allowed to offer through his character witnesses specific instances of his prior good conduct. Such evidence is considered too distracting and time consuming. Thus, specific instances of conduct can only be introduced through cross-examination, unless “character or a trait of character of a person is an essential element of an offense or defense.” Mil. R. Evid. 405(b). Enlisted Performance Reports and similar documents frequently recite specific instances of a servicemember’s conduct. Indeed, rating officials are often encouraged to support their general evaluations by specific illustrations. Therefore, these performance reports — as in this case — may contain a substantial amount of information which is inadmissible under Mil. R. Evid. 405. In this connection, considerable discretion must be allowed the trial judge. For example, he may receive Enlisted Performance Reports in evidence with instructions for the court" }, { "docid": "12031766", "title": "", "text": "was so overwhelming on this record that he simply could not have been prejudiced by the questions. The decision of the United States Army Court of Military Review is affirmed. Judge SULLIVAN concurs. . Defense counsel specifically asserted such a theory in final argument on the merits. Further, the evidence could not have been proffered to bolster appellant’s character for truthfulness because Mil.R.Evid. 608(a)(2), Manual for Courts-Martial, United States, 1969 (Revised edition), forbids such bolstering until after a witness' character for truthfulness has been attacked, and that had not yet occurred. . On this record, the Government’s “cross-examination” is styled \"redirect examination,” since the defense opened up this line of questioning on what is styled \"cross-examination.” Needless to say, had it been the prosecution that introduced the reputation or opinion evidence, Mil. R.Evid. 404(a)(1), the defense could have inquired into \"specific instances of conduct.\" Mil. R.Evid. 405(a). . Thus, this opinion should not be read as sanctioning impeachment by lack of knowledge of investigations, arrest, preferral of charges, etc. It is the information in the prosecution’s hands here that distinguishes this case. EVERETT, Chief Judge (concurring in the result): The basis for the military judge’s permitting the challenged questions of Sergeant Hamilton was Mil.R.Evid. 405(a), Manual for Courts-Martial, United States, 1969 (Revised edition). In addition, he performed the balancing exercise required under Mil. R.Evid. 403 and concluded that the questions’ probative value outweighed their risk of unfair prejudice. In both respects, I disagree. As the majority opinion notes, Mil.R. Evid. 404(a)(1) permits the defense to offer “[ejvidence of a pertinent trait of the character of the accused” and permits “the prosecution to rebut the same.” Mil.R. Evid. 405(a) expressly permits such character trait to be proved “by testimony in the form of an opinion.” Pursuant to this provision, the defense elicited Sergeant Hamilton’s opinion of Pearce’s honesty. Thereafter, the prosecution sought to test the validity of that opinion by inquiring, over defense objection, whether, in arriving at it, Hamilton had been aware that, during the time frame in which he had known Pearce, the latter had been “a suspect and" }, { "docid": "13649651", "title": "", "text": "123 (C.M.A.1988); Mil. R. Evid. 404(a)(1). Any such rebuttal evidence must be relevant under Mil. R. Evid. 401 and 402, and its probative value cannot be substantially outweighed by its prejudicial effect. Pearce, 27 M.J. at 124-25; Mil. R. Evid. 403. Even though a trait of character is admissible, the Military Rules of Evidence prescribe the form that evidence may take. Mil. R. Evid. 405(a) provides: Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. When a military judge rules on an evidentiary objection such as this one, we are to apply an abuse-of-diseretion standard. United States v. Sullivan, 42 M.J. 360, 363 (1995); United States v. Orsburn, 31 M.J. 182, 187 (C.M.A.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991). In this case, Appellant raised the defense of good military character and suggested the possibility of innocent ingestion, the only possible explanation consistent with that character and the other evidence. On cross-examination of Appellant’s first character witness, a Marine lieutenant colonel who had known him only professionally, trial counsel asked whether he was aware that Appellant was living with a drug user and that he socialized “on a fairly regular basis with someone who was smoking marijuana in his presence.” Record at 88. The defense counsel objected to the latter question, apparently on the basis of relevance; the military judge immediately overruled the objection. Id. The witness admitted that he had no personal knowledge of this but, if true, it would adversely effect his opinion of Appellant’s military character. Id. at 89. Later, trial counsel asked similar questions of Appellant’s second character witness, a Marine captain. Id. at 94-95. Although admittedly unaware of any such associations, the witness testified that, if true, it would raise serious concerns in his mind about Appellant’s military character. Id. at 95-96. Defense counsel entered no objection to this" }, { "docid": "13649652", "title": "", "text": "military character and suggested the possibility of innocent ingestion, the only possible explanation consistent with that character and the other evidence. On cross-examination of Appellant’s first character witness, a Marine lieutenant colonel who had known him only professionally, trial counsel asked whether he was aware that Appellant was living with a drug user and that he socialized “on a fairly regular basis with someone who was smoking marijuana in his presence.” Record at 88. The defense counsel objected to the latter question, apparently on the basis of relevance; the military judge immediately overruled the objection. Id. The witness admitted that he had no personal knowledge of this but, if true, it would adversely effect his opinion of Appellant’s military character. Id. at 89. Later, trial counsel asked similar questions of Appellant’s second character witness, a Marine captain. Id. at 94-95. Although admittedly unaware of any such associations, the witness testified that, if true, it would raise serious concerns in his mind about Appellant’s military character. Id. at 95-96. Defense counsel entered no objection to this second line of questions. We conclude that it was not improper to question Appellant’s character witnesses in this manner. Trial counsel’s questions went directly to test the basis of the witness opinion of the good military character of Appellant, and not to establish guilt by association. It was within the ambit of Mil. R. Evid. 405(b) to allow questioning into certain relevant instances of conduct in Appellant’s off-duty life that adversely impacted upon various aspects of his military character, particularly good judgment and leadership-by-example. See Ford, 23 M.J. at 337 (in view of the military’s campaign against illegal drugs, any servicemember knows that “marihuana is contraband” and that he should “avoid any and all contact” with it). On the other hand, we are concerned about how trial counsel later summarized the military-character evidence in his closing argument on findings. In the concluding paragraph of his argument, he stated as follows: [Bjased on his conduct of ... associating with Marines that are known drug users, and living near and with Marines that are known drug users," }, { "docid": "3841537", "title": "", "text": "to be involuntary ex post facto and, thus, in violation of his rights to constitutional due process, thereby making his conviction infirm. That, however, does not mean that other forms of evidence of the other illegal acts evidencing the appellant’s concurrent course of illegal conduct committed on his 15-year-old step-daughter are not sufficiently reliable, or not relevant, or not admissible at his court-martial. So long as during sentencing the court-martial did not rely on misinformation pertaining to evidence of other crimes, the court’s discretion, subject to the limitations of R.C.M. 1001(b), applicable rules of evidence, and applicable case law, is largely unlimited as to the source from which the aggravating evidence may come, whether or not the evidence was admissible at trial on the merits. See generally United States v. Larson, 112 F.3d 600, 605-06 (2nd Cir.1997)(internal citations omitted); see also Vickers, 13 M.J. at 404. A problem of first impression facing this court in the appellant’s case is how to reconcile the apparent inconsistency between Mil. R. Evid. 414(a) and R.C.M. 1001(b). Both Fed.R.Evid. 414(a) and Mil. R. Evid. 414(a) reflect the clear legislative intent that evidence of similar crimes in child molestation cases shall normally be admissible and considered for its bearing on any matter to which it is relevant. Both federal and military courts now routinely admit this evidence during trial on the merits after conducting a balancing test under Fed.R.Evid. 403 or Mil. R. Evid. 403, respectively. However, this court has not found any published federal or military cases where evidence of similar crimes in child molestation cases was either offered and admitted or offered but excluded under Fed.R.Evid. 414(a) or Mil. R. Evid. 414(a) during the presentencing phase of an appellant’s trial or court-martial. We, nonetheless, conclude that given the clear intent of Congress, evidence of similar crimes in child molestation cases offered under Mil. R. Evid. 414(a) during the presentencing phase of an appellant’s court-martial will normally be admissible under R.C.M. 1001(b)(4), subject to a balancing conducted under Mil. R. Evid. 403, and the notification requirements of Mil. R. Evid. 414(a). This rule applies" }, { "docid": "17027413", "title": "", "text": "military judge erred to appellant’s prejudice when he failed to consider non-contemporaneous evidence in evaluating the hearsay statement’s trustworthiness. While we agree that the evidentiary standard articulated by the military judge for evaluating the trustworthiness of residual hearsay under Mil. R. Evid. 803(24) where the statement’s author testifies was erroneous, we are satisfied that the appellant was not prejudiced. LAW In United States v. McGrath, 39 M.J. 158, 164-67 (1994) ... [the United States Court of Appeals for the Armed Forces] identified a fundamental difference between [Mil. R. Evid. 803(24) and Mil. R. Evid. 804(b)(5) ]. Where the declarant actually testifies, the military judge may look beyond the circumstances of the declaration and consider corroborating evidence to determine if the declaration is sufficiently trustworthy to be admitted. Where the declarant does not testify, however, the military judge may consider only those circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.” United States v. Pollard, 38 M.J. 41, 49 (C.M.A.1993), quoting Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990). United States v. Ureta, 44 M.J. 290, 296 (1996) (emphasis added). DISCUSSION While the court in McGrath approved only the admissibility of non-contemporaneous “corroborating” evidence in evaluating the trustworthiness of a testifying witness’s out of court declaration offered as Mil. R. Evid. 803(24) residual hearsay, we are satisfied that the McGrath rationale may be extended to permit consideration of any relevant non-contemporaneous evidence, including impeaching evidence. Accordingly, we find that the military judge erred as a matter of law when he concluded that he could not, in his discretion, consider non-contemporaneous events relevant to the trustworthiness of A’s accusatory statement. However we are satisfied that the military judge’s error was not prejudicial to the appellant. EVIDENCE CONSIDERED BY THE MILITARY JUDGE The military judge considered the following contemporaneous circumstances of A’s sworn written statement as guarantees of its trustworthiness: A volunteered the allegation of sexual abuse after a minimal inquiry in conjunction with the physical abuse investigation; the allegations were not taken or elicited solely by law" }, { "docid": "8455315", "title": "", "text": "a general presumption in favor of admission of evidence.” United States v. Berry 61 M.J. 91, 96 (C.A.A.F.2005) (citing Wright, 63 M.J. at 482-83). There are three threshold requirements before evidence may be admitted under Mil. R. Evid. 413: 1. The appellant is charged with an offense of sexual assault; 2. The evidence proffered is evidence of the appellant’s commission of another offense of sexual assault; and 3. The evidence is relevant under Mil. R. Evid. 401 and 402. Wright, 63 M.J. at 482. If the evidence passes those threshold requirements, the military judge must then apply the balancing test under Mil. R. Evid. 403, considering the following factors: strength of the proof of the prior act; probative weight of the evidence; potential to present less prejudicial evidence; possible distraction of the facbfinder; time needed to prove the prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties. Id. The military judge should make detailed findings on the record; failure to “sufficiently articulate his balancing on the record” will result in his evidentiary ruling receiving less deference. Berry, 61 M.J. at 96. Analysis The appellant asserts that Mil. R. Evid. 413 “was never meant to allow charges before a court-martial to support each other’s proof’ and that doing so in his case violated his constitutional rights to presumption of innocence and due process. We disagree. First, the plain language of Mil. R. Evid. 413 — allowing “evidence that the accused committed any other sexual offense” — is broad and betrays no exception for charged misconduct. We are not a rulemaking body and, even were we inclined to find such an exception prudent, we are bound to apply the Rule as written, not as may be desired, unless it is unconstitutional. Wright, 53 M.J. at 481. Second, we see nothing more prudent or fair about a rule that would prohibit evidence from being considered under Mil. R. Evid. 413 if it pertains to charged offenses, but allow it if the evidence is too old or too weak to be charged or if" } ]

[ { "docid": "725079", "title": "", "text": "the first place. A board of directors does not have the authority to sue in its own name as a board on behalf of the corporation; instead, legal action must be taken in the name of the corporation itself. Iowa Code § 504A.4(2) (Supp.1979). Therefore, even if HCEC was properly formed under § 504A.21, Chapter 504A would not vest in it the authority to assert the present claims. 2. Capacity under Iowa Common Law The Court believes that HCEC is an unincorporated association with the capacity to sue under Iowa law. In Wilson & Co. v. United Packinghouse Workers of America, 181 F.Supp. 809, 815 (N.D.Iowa 1960), Judge Graven in ascertaining the status of the local union defendant under Iowa law cited the United States Supreme Court’s definition of “association” in Hecht v. Malley, 265 U.S. 144, 157, 44 S.Ct. 462, 467, 68 L.Ed. 949 (1924): It has been defined as a term ‘used throughout the United States to signify a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.’ Judge Graven concluded that the local union was in fact an unincorporated association. Wilson, 181 F.Supp. at 815. Although the committee concept advanced here is not the type of organization ordinarily considered an association, this Court is persuaded that HCEC comes within this broad definition. It was formed for the purpose of furthering a common goal-prosecution of this action. Even though there is no corporate charter, the committee is given the power to make by-laws, to compensate members, and to conduct activities in furtherance of the association’s purpose. HCEC adopted the society’s by-laws and constitution. Under the law of Iowa, unincorporated associations are given the capacity to sue and be sued as a legal entity. See Wright & Miller, 6 Federal Practice and Procedure, § 1564 at 742 (1971). HCEC, as an unincorporated association with capacity to sue under Iowa law, has capacity to sue pursuant to Federal Rule of Civil Procedure 17(b). 3. Capacity under Federal Substantive Law Even if the Iowa common law" } ]

[ { "docid": "20123391", "title": "", "text": "shall be determined by the law of the individual’s domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States.... Plaintiff argues under Rule 17(b) that, although the law of the District of Columbia does not allow unincorporated associations to be sued, the exception in subsection (1) applies because defendants are being sued for violations of federal law. Therefore, defendants do not lack legal capacity to be sued. See Pl.’s Supp. Mem. at 7-10. The Court disagrees. Implicit in plaintiffs argument is the assumption that defendants are in fact “unincorporated associations” under Rule 17(b)(1). The Court, however, is unaware of any reason to treat a division of a corporation in this manner. It is well-settled that the determination of whether defendants are unincorporated associations under Rule 17(b)(1) is governed by federal law. See Associated Students of Univ. of Cal. v. Kleindienst, 60 F.R.D. 65, 67 (C.D.Cal.1973) (citing cases). Although the term “unincorporated association” has not been defined uniformly under federal law, the definitions propounded by courts are substantially identical. See, e.g., Committee for Idaho’s High Desert v. Yost, 881 F.Supp. 1457, 1469 n. 1 (D.Idaho 1995) (citing “nearly identical definitions of ‘unincorporated association’ for purposes of the Rule 17(b)(l)’s federal law exception”), rev’d in part on other grounds, 92 F.3d 814 (9th Cir.1996). For example, the court in Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1222 (5th Cir.1969), defined an unincorporated association as “a body of persons acting together, without a charter, but upon methods and forms used by a corporation, for the prosecution of some common enterprise”; the court in" }, { "docid": "22996896", "title": "", "text": "that CIHD was an “unincorporated association”. It found only that CIHD was, at all times since its founding, “a non-profit environmentalist membership organization”. As noted, this finding was not clearly erroneous. The court did then conclude as a matter of law that CIHD was an “unincorporated association” with the capacity to sue in its common name under Federal Rule of Civil Procedure 17(b). 881 F.Supp. at 1469. If appellants’ brief can be read to challenge this conclusion of law, the challenge fails. Rule 17(b)(1) allows an “unincorporated association” to sue in federal court, regardless of its capacity to sue under the law of the state in which the court sits, when the association is suing “for the purpose of enforcing ... a substantive right existing under the ... laws of the United States”. Fed. R.Civ.P. 17(b)(1). See, e.g., Sierra Association for Environment v. Federal Energy Regulatory Commission, 744 F.2d 661, 662 (9th Cir.1984) (“[BJecause this action arises under federal law, [plaintiff] had capacity to sue as an unincorporated association, Fed. R.Civ.P. 17(b)(1), and any incapacity under California law is accordingly irrelevant.”). For purposes of Rule 17(b)(1), the determination of what constitutes an “unincorporated association” is a question of federal law. Associated Students of the University of California at Riverside v. Kleindienst, 60 F.R.D. 65, 67 (C.D.Cal.1973) (citing cases). Courts have generally defined an “unincorporated association” as “a voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common objective”. Local 1076, United Steelworkers v. United Steelworkers, 327 F.Supp. 1400, 1403 (W.D.Pa.1971). CIHD, in the period after the forfeiture of its corporate charter, clearly meets this definition. Appellants’ contention that the district court somehow erred in allowing Morris and Marcum to testify “as if they were officers of an association” is unavailing. Those witnesses testified that they believed at all times, until appellants moved to bar CIHD’s intervention in the snail litigation, that CIHD was a corporation. After learning of the forfeiture and being unable to reinstate the corporation, the organization continued to act as what can only be described as an unincorporated association" }, { "docid": "725081", "title": "", "text": "did not give an association the capacity to sue, HCEC would have the right to bring this action as a separate entity under the federal substantive right exception found in Rule 17(b)(1), which provides that an unincorporated association not accorded legal status under state law may still have capacity to sue if it is suing for “the purpose of enforcing ... a substantive right existing under the Constitution or laws of the United States, . .. ”. The Federal and Iowa definitions of unincorporated association are the same: a group of persons formed voluntarily without a charter for the purpose of promoting a common enterprise or objective. Hecht v. Malley, 265 U.S. 144, 157, 44 S.Ct. 462, 467, 68 L.Ed. 949 (1924); Associated Students of University of California at Riverside v. Kleindienst, 60 F.R.D. 65, 67 (C.D.Cal.1973); Local 4076, United Steelworkers v. United Steelworkers, 327 F.Supp. 1400, 1402-03 (W.D.Pa.1971); Yonce v. Miners Memorial Hospital Association, 161 F.Supp. 178, 186 (W.D.Va.1958). The Court earlier concluded that HCEC is an unincorporated association under this definition. Further, the plaintiff’s complaint clearly alleges a claim seeking to enforce a substantive right pursuant to federal antitrust law under claims assigned to it. Pursuant to the Court’s responsibility to determine the applicability of the substantive federal right exemption found in Rule 17(b)(1), the Court concludes that HCEC has capacity to sue as an unincorporated association in its own name under Federal Rule of Civil Procedure 17(b)(1). Therefore, all defendants’ requests for. dismissal for lack of capacity to sue are denied. B. Standing 1. Treble Damage Claim The Eighth Circuit Court of Appeals recently affirmed the dismissal of a complaint on the ground that plaintiff, a nonprofit association, lacked standing to assert the federal antitrust claims in either its own right or in its representational capacity. Associated General Contractors v. Otter Tail Power, 611 F.2d 684, 687-691 (8th Cir. 1979). In arguing that HCEC lacks standing to assert the damage claims, the defendants rely heavily on the Eighth Circuit’s observation that associational standing is traditionally denied for treble damage claims asserted pursuant to § 4 of the" }, { "docid": "3024876", "title": "", "text": "unincorporated association and finding it a \"fair inference,” under liberal construction of plaintiff's complaint, that chairman, treasurer, and manager of political campaign committee were \"members” of the committee); cf. Airington v. Juki, 883 S.W.2d 286 (Tex.Ct.App. — El Paso 1994) (applying common law definition to determine whether group of abortion protesters were an “unincorporated association”). . Reading Co. v. City of Phila., No. 91-CV-2377, 1992 WL 392595, at *6 (E.D.Pa. Dec.-17, 1992) (citing Selected Risks Ins. Co. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989)); see Cox v. Thee Evergreen Church, 836 S.W.2d 167, 169 (Tex.1992). (\"An unincorporated association is a voluntary group, of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective.”); see also Olick & Stewart, supra note 35, § 11, at 33 (defining unincorporated association as a \"body of people united in purpose and acting together, usually with a formal charter”). . 7 C.J.S. Associations § 19, at 54. . Id. . Id.; see Lunsford v. City of Bryan, 292 S.W.2d 852, 854 (Tex.Civ.App.1956) (\"Membership is a question of fact.”), rev’d on other grounds, 156 Tex. 520, 297 S.W.2d 115 (1957). . See Libby v. Perry, 311 A.2d 527, 531 (Me.1973) (stating that \"proof of participation in its organization, meetings, and activities,\" is sufficient to support finding that persons accepted membership in an unincorporated nonprofit association); Francis v. Perry, 82 Mise. 271, 144 N.Y.S. 167, 173 (Oneida County Ct.1913) (considering acts by alleged member to determine intent and understanding of parties regarding his status in the association). . We are aware of only two decisions where courts found that a candidate for federal office was not a member of his campaign committee. Neither finding was relevant to the resolution of either case. See Pittman v. Martin, 429 So.2d 976 (Ala.1983) (reversing trial court’s summary judgment in- favor candidate for the U.S. Senate in wrongful death action arising out of aircraft accident during campaign); W.H. Brewton & Sons, Inc. v. Kennedy, 110 Daily Wash.L.Rep. 1681 (D.C.Super.Ct.1982) (expressly finding that committee “does not have ... members,\"" }, { "docid": "22698365", "title": "", "text": "where those who become beneficially interested, either by joining in the plan at the outset, or by later participation according to the terms of the arrangement, seek to share the advantages of a union of their interests in the common enterprise. The Government contends that such an organized community of effort for the doing of business presents the essential features of an association. Petitioners stress the significance of, and the limitations said to be implied in, the provision classifying associations with corporations. 4. The inclusion of associations with corporations implies resemblance; but it is resemblance and not identity. The resemblance points to features distinguishing associations from partnerships as well as from ordinary trusts. As we have seen, the classification cannot be said to require organization under a statute, or with statutory priv ileges. The term embraces associations as they may exist at common law. Hecht v. Malley, supra. We have already referred to the definitions, quoted in that case, showing the ordinary meaning of the term as applicable to a body of persons united without a charter “ but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.” These definitions, while helpful, are not to be pressed so far as to make mere formal procedure a controlling test. The provision itself negatives such a construction. Thus unincorporated joint-stock companies have generally been regarded as bearing the closest resemblance to corporations. But, in the revenue acts, associations are mentioned separately and are not to be treated as limited to “ joint-stock companies,” although belonging to the same group. While the use of corporate forms may furnish persuasive evidence of the existence of an association, the absence of particular forms, or of the usual terminology of corporations, cannot be regarded as decisive. Thus an association may not have “ directors ” or “ officers,” but • the “ trustees ” may function “ in much the same manner as the directors in a corporation ” for the purpose of carrying on the enterprise. The regulatory provisions of the trust instrument may take the place of" }, { "docid": "17069677", "title": "", "text": "final judgment, order, or proceeding, for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (4) the judgment is void; (5) ... it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. . Prewitt also appeals the district court's decision to vacate the default judgment and injunction. We need not reach that issue in light of our disposition of this case. .Fed. R.Civ. P. 12(b)(5) provides that: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto ... except that the following defenses may at the option of the pleader be made by motion: ... (5) insufficiency of service or process.... . The district court treated OPEC as an unincorporated association pursuant to Fed. R.Civ.P. 17(b)(1). Under this Circuit’s jurisprudence, an unincorporated association is defined as \"a body of persons acting together, without a charter, but upon the methods and forms used by corporations, for the prosecution of some common enterprise.” Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1222 (5th Cir.1969) (holding that labor unions, agricultural societies, co-ops, banking associations, charitable associations, news associations, and religious societies may all be considered unincorporated associations). But see Dean v. Barber, 951 F.2d 1210, 1215 n. 4 (11th Cir.1992) (holding that a government unit, subdivision or agency may not be considered an unincorporated association). Cf. Hennessey v. Nat’l Collegiate Athletic Ass’n, 564 F.2d 1136 (5th Cir.1977) (treating a college athletic association in an antitrust suit as an unincorporated association even where some of its members were state institutions rather than individuals). In this case, OPEC is an administrative body joined together for the common purpose of acting on behalf of the business and political interests of its members with regard to their petroleum resources. While its members are sovereign nation states rather than private individuals, OPEC is not a governmental unit or subdivision and' is not incorporated under the laws of any one Member State." }, { "docid": "22698356", "title": "", "text": "association ” appeared to be used in its ordinary meaning, and we referred to several definitions found in standard dictionaries, as, e. g., “ a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise ”; “ a body of persons organized for the prosecution of some purpose, without a charter, but having the general form and mode of procedure of a corporation “ an organized but unchartered body analogous to but distinguished from a corporation.” Id., p. 157. We expressed the view that the word “ association,” as used in the excise tax provision of the Revenue Act of 1918, clearly included “ Massachusetts trusts,” of the sort there involved, “having quasi-corporate organizations under which they are engaged in carrying on business enterprises.” We were careful to say that it was then unnecessary to determine “ what other form of ‘ associations,’ if any,” the Act embraced. Id. In the Hecht case, the trustees of the Hecht and Hay-market trusts relied strongly upon the decision in Crocker v. Motley as conclusively determining that those trusts could not be held to be associations, unless the trust agreements vested “ the shareholders with such control over the trustees as to constitute them more than strict trusts within the Massachusetts rule.” Reviewing the reasoning of that decision, we pointed out that it was not authority for the broad proposition advanced. We concluded that, when the nature of the trusts was considered, as the petitioners were “not merely trustees for collecting funds and paying them over,” but were “ associated together in much the same manner as the directors in a corporation for the purpose of carrying on business enterprises,” the trusts were to be deemed associations within the meaning of the Act of 1918. This was true “ independently of the large measure of control exercised by the beneficiaries.” And we rejected the view that Congress intended that organizations of that character “ should be exempt from the excise tax on the privilege of carrying on their business" }, { "docid": "18338885", "title": "", "text": "307 F.2d 21, 29, cert. denied, 1963, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978. These guidelines become especially applicable when dealing with the Jones Act. To hold that labor unions will be the only unincorporated associations to be likened to corporations would be to exclude myriad other unincorporated associations, many of them very large, such as agricultural societies, co-ops, banking associations, charitable associations, news associations, and religious societies, from the sound result of the Denver decision. This would force the law back to the restrictive rule allowing unincorporated associations other than labor unions to be sued only at the location of their principal place of business. Not only would that be illogical, but it would subject litigants bringing suit against such associations to unfair, discriminatory burdens. Furthermore, it would run counter to the general trend to allow suits to be brought at the place liabilities are being created. On the second question, exploring the legal theory behind an unincorporated association to determine the difference between that form of enterprise and a partnership can certainly be an exercise in futility. Platitudes and generalities abound. Most are question begging. New sharp legal boundaries appear. The definition of an association given in 7 C.J.S. Associations § 1, at p. 19, is as good as any: “An ‘association’ is a body of persons acting together, without a charter, but upon the methods and forms used by corporations, for the prosecution of some common enterprise.” In Houghton v. Grimes, 1926, 100 Vt. 99, 135 A. 15, 18, the Court said that “[a]t common law an unincorporated association, as regards its rights and liabilities, is fundamentally a large partnership.” And in People v. Brander, 1910, 244 Ill. 26, 91 N.E. 59, the Court was on safe ground in simply saying that “the term ‘association’ is a word of vague meaning.” On the other hand, a partnership nominally has a well-defined meaning. “A partnership is an association of two or more persons to carry on as co-owners a business for profit.” Uniform Partnership Act § 6(1). On the basis of this definition, one of the" }, { "docid": "22681530", "title": "", "text": "clear import. 3. We also conclude that these three trusts are “ associations ” created or organized in the United States and engaged in business, within the meaning of the Act. The trustees of the Hecht and Haymarket Trusts insist that they are not such “associations”. The trustees of the Crocker Association on the other hand admitted in the Circüit Court of Appeals and at the bar, that since the modification of the original trust agreement, the trust constitutes an “ association ”. The word “ association ” appears to be used in the Act in its ordinary meaning. It has been defined as a term “ used throughout the United States to signify a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.” 1 Abb. Law Diet. 101 (1879); 1 Bouv. Law Diet. (Rawle’s 3rd Rev.) 269; 3 Am. & Eng. Enc. Law (2d ed.) 162; and Allen v. Stevens (App. Div.), 54 N. Y. S. 8, 23, in which this definition was cited with approval as being in accord with the common understanding. Other definitions are: “In the United States, as distinguished from a corporation, a body of persons organized, for the prosecution of some purpose, without a charter, but having the general form and mode of procedure of a corporation.” Webst. New Internal Diet. “ [U. S.] An organized but unchartered body analogous to but distinguished from a corporation.” Pract. Stand. Diet. And see Malley v. Bowditch (C. C. A.), 259 Fed. 809, 812; Chicago Title Co. v. Smietanka (D. C.) 275 Fed. 60: also United Mine Workers v. Coronado Co., 259 U. S. 344, 392, in which unincorporated labor unions were held to be “ associations ” within the meaning of the Anti-Trust Law. We think that the word “ association ” as used in the Act clearly includes “ Massachusetts Trusts ” such as those herein involved, having quasi-corporate organizations under which they are engaged in carrying on business enterprises. What other form of “ associations ”, if any, it" }, { "docid": "3407854", "title": "", "text": "New York with deposits totaling approximately $18 million dollars. See Pis.’ Supp. Mem., Ex. G. On the basis of this evidence, the Court concludes that plaintiffs’ have made a pri-ma facie showing that defendants PA and PLO have minimum contacts with the United States as a whole. Plaintiffs’ evidence goes beyond the allegations in the complaint, providing competent evidence of defendant PA’s and defendant PLO’s contacts with the United States as a whole. However, before this Court can conclude that it may constitutionally exercise personal jurisdiction over the PA defendants, plaintiffs must also demonstrate that the PA defendants were served in a district where they reside, are found, or have an agent. Plaintiffs contend that defendants PA and PLO were served with process in this action pursuant to Federal Rule of Civil Procedure 4(h)(1), which pertains to service upon corporations and associations. “An unincorporated association is defined as a body of persons 'acting together and using certain methods for prosecuting a special purpose or common enterprise.” Motta v. Samuel Weiser, Inc., 768 F.2d 481, 485 (1st Cir.1985)(citing Black’s Law Dictionary 111 (5th ed.1979)), cert. denied, 474 U.S. 1038, 106 S.Ct. 596, 88 L.Ed.2d 575 (1985). It has previously been determined that the PLO qualifies as an unincorporated association because “[i]t is composed of individuals, without a legal identity apart from its membership, formed for specific objectives.” Klinghoffer v. S.N.C. Achille Lauro Ed, 739 F.Supp. 854, 858 (S.D.N.Y.1990). Defendant PA also qualifies as an unincorporated association for purposes of service of process. The PA is not presently recognized as a foreign state by the United States. Therefore, it may also be categorized as an organization composed of individuals seeking to achieve specific objectives, and which has no legal identity in the United States apart from its membership. Under Rule 4(h)(1), service of process on an unincorporated association shall be effected “by delivering a copy of the summons and of the complaint to an officer, [or] a managing or general agent.” Fed. R.Civ.P. 4(h)(1). Plaintiffs allege that service of process was delivered to Hasan Abdel Rahman (the Chief Representative of the PA" }, { "docid": "20123392", "title": "", "text": "in fact “unincorporated associations” under Rule 17(b)(1). The Court, however, is unaware of any reason to treat a division of a corporation in this manner. It is well-settled that the determination of whether defendants are unincorporated associations under Rule 17(b)(1) is governed by federal law. See Associated Students of Univ. of Cal. v. Kleindienst, 60 F.R.D. 65, 67 (C.D.Cal.1973) (citing cases). Although the term “unincorporated association” has not been defined uniformly under federal law, the definitions propounded by courts are substantially identical. See, e.g., Committee for Idaho’s High Desert v. Yost, 881 F.Supp. 1457, 1469 n. 1 (D.Idaho 1995) (citing “nearly identical definitions of ‘unincorporated association’ for purposes of the Rule 17(b)(l)’s federal law exception”), rev’d in part on other grounds, 92 F.3d 814 (9th Cir.1996). For example, the court in Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1222 (5th Cir.1969), defined an unincorporated association as “a body of persons acting together, without a charter, but upon methods and forms used by a corporation, for the prosecution of some common enterprise”; the court in Local 4076, United Steelworkers v. United Steelworkers, 327 F.Supp. 1400, 1403 (W.D.Pa.1971) defined it as “a voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective”; and the court in Murray v. Sevier, 50 F.Supp.2d 1257, 1274 (M.D.Ala.1999), defined it as “a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some en terprise.” While all of these definitions describe an unincorporated association as a collection of persons working together for a common objective, they also describe it as an entity operating without a corporate charter. The Court finds this latter characteristic determinative of whether an unincorporated division of a corporation meets the definition of an unincorporated association. Unlike the unincorporated associations defined above, a division of a corporation does operate with a charter— the charter of the larger corporation. Although the division is not separately incorporated, it is still governed by the terms of the corporate charter and" }, { "docid": "3544935", "title": "", "text": "It has been defined as a term ‘used throughout the United‘States to signify a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.’ 1 Abb. Law Dict. 101 (1879) ; 1 Bouv. Law Dict. (Rawle’s 3d Rev.) 269; 3 Am. & Eng. Enc. Law (2d Ed.) 162; and Allen v. Stevens, 33 App. Div. 485, 54 N. Y. S. 8, 23, in which this definition was cited with approval as being in accord with the common understanding. Other definitions are: ‘In the United States, as distinguished from a corporation, a body of persons organized, for the prosecution of some purpose, without a charter, but having the general form and mode of procedure of a corporation.’ ” In the same case the court said (page 161 of 265 U. S., 44 S. Ct. 462, 468) : “It results that Crocker v. Malley is not an authority for the broad proposition that under an Act imposing an excise tax upon the privilege of carrying on a business, a Massachusetts Trust engaged in the carrying on of business in a quasi-corporate form, in which the trustees have similar or greater powers than the directors in a corporation, is not an ‘association’ within the meaning of its provisions. “We conclude, therefore, that when the nature of the three trusts here involved is considered, as the petitioners are not merely trustees for collecting funds and paying them over, but are associated together in much the same manner as the directors in a corporation for the purpose of carrying on business enterprises, the trusts are to be deemed associations within the meaning of the Act of 1918.” This appears to be the last word of the Supreme Court that is helpful in determining what is included in the term “association.” The Treasury Department has endeavored from time to time to clarify the situation by Regulations defining associations and trusts. Under Article 1504 of Regulation 62, it followed what it understood was the holding of the court in Crocker v. Malley, supra," }, { "docid": "3024875", "title": "", "text": "Committee.”). . Pennsylvania law requires only that a campaign committee identify its treasurer and chairman, Pa.Stat.Ann. tit. 25, § 3242 (1992) (organization of political committees). FECA requires that a candidate’s principal political committee . identify its treasurer. 2 U.S.C. § 432(a). Texas requires that candidates for federal office comply with federal law, i.e., identify their treasurers. Tex.Elec.Code Ann. § 251.006 (West Supp.1994) (Federal Office Excluded). . We do note that some other states provide that a candidate has broad authority over his committee , and its members. See, e.g., Mo.Ann. Stat. § 130.01 l(7)(b) (Vernon 1994) (“A committee is presumed to be under the control and direction of an individual candidate ... unless the candidate files an affidavit ... stating that the committee is acting without control or direction on his part_’’); Utah Code Ann. § 20-14-3 (1994) (stating that the “candidate may revoke the selection of any member of the campaign committee”). . See, e.g., Hafenbraedl v. LeTendre for Congress Comm., 61 Wis.2d 665, 213 N.W.2d 353 (1974) (applying common law definition of an unincorporated association and finding it a \"fair inference,” under liberal construction of plaintiff's complaint, that chairman, treasurer, and manager of political campaign committee were \"members” of the committee); cf. Airington v. Juki, 883 S.W.2d 286 (Tex.Ct.App. — El Paso 1994) (applying common law definition to determine whether group of abortion protesters were an “unincorporated association”). . Reading Co. v. City of Phila., No. 91-CV-2377, 1992 WL 392595, at *6 (E.D.Pa. Dec.-17, 1992) (citing Selected Risks Ins. Co. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989)); see Cox v. Thee Evergreen Church, 836 S.W.2d 167, 169 (Tex.1992). (\"An unincorporated association is a voluntary group, of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective.”); see also Olick & Stewart, supra note 35, § 11, at 33 (defining unincorporated association as a \"body of people united in purpose and acting together, usually with a formal charter”). . 7 C.J.S. Associations § 19, at 54. . Id. . Id.; see Lunsford v. City of Bryan," }, { "docid": "6718290", "title": "", "text": "am clear that if the Committee, as distinguished from the individual defendants, has standing to sue then the requisite jurisdictional amount is in controversy and defendants’ motion must be denied. It will be noted that resolution of this issue in favor of standing to sue will also have the effect of disposing of that part of defendants’ motion which seeks an order striking all reference to the Committee from the complaint. Plaintiffs assert and defendants do not deny that under New York law the Committee is an unincorporated association. Defendants do say that in New York “a committee cannot sue as it is not a juristic entity.” However they cite no cases and make no argument in support of this assertion. The Committee is an organization of persons united for the prosecution of a common enterprise and having no charter. The enterprise in which the members of the Committee are interested is a business purpose. I find no reason for disagreeing with plaintiffs’ assertion that the Committee is an unincorporated association. See Gillette v. Allen, 269 App.Div. 441, 56 N.Y.S.2d 307. Under section 13 of the General Associations Law of New York such an association may sue or be sued in its own name. No reason has been advanced why the fact that all members of the Committee are suing, rather than its president or treasurer as provided in the New York statute, should have the effect of making suit in the name of the Committee improper under this law. Without further enlightenment it seems to me that the statutory reference to the president or treasurer of the association was merely an attempt to further convenience. Thus I believe that the Committee has capacity to sue. Under Rule 17 (b), F.R.C.P., it may, therefore, be a party in a suit in this court. The three members of the Committee say that they have lost over $3,000. If they sued as individuals there would be no stated claim that any one had lost $3,000 and thus the jurisdictional amount would be absent. Where, however, they are allowed to sue as an" }, { "docid": "18338886", "title": "", "text": "certainly be an exercise in futility. Platitudes and generalities abound. Most are question begging. New sharp legal boundaries appear. The definition of an association given in 7 C.J.S. Associations § 1, at p. 19, is as good as any: “An ‘association’ is a body of persons acting together, without a charter, but upon the methods and forms used by corporations, for the prosecution of some common enterprise.” In Houghton v. Grimes, 1926, 100 Vt. 99, 135 A. 15, 18, the Court said that “[a]t common law an unincorporated association, as regards its rights and liabilities, is fundamentally a large partnership.” And in People v. Brander, 1910, 244 Ill. 26, 91 N.E. 59, the Court was on safe ground in simply saying that “the term ‘association’ is a word of vague meaning.” On the other hand, a partnership nominally has a well-defined meaning. “A partnership is an association of two or more persons to carry on as co-owners a business for profit.” Uniform Partnership Act § 6(1). On the basis of this definition, one of the immediate distinctions urged by Shipowner is that an unincorporated association may be formed for some political or benevolent enterprise, while a partnership is nearly always formed to earn a profit. We think this is bad economics and, at least, incomplete law. Worse, for venue purposes the distinction is meaningless. An unincorporated association formed for the most worthy of non-profit purposes could still create liabilities where it was doing business. Extending this argument, Shipowner urges that since many unincorporated associations — especially unions — have grown so large and pervasive in their influence, the Supreme Court opted to hold them suable where they were doing business. But partnerships, too, can grow to immense proportions, as Shipowner’s activities attest. It operates under an assumed name, employs over seven hundred people, owns twenty-five drilling rigs, and operates in at least three states and on the high seas. (See note 2 supra). Of all things, the most irrelevant is the domicile or residence of those individuals who happen to own the enterprise. It acts like a business. It acts" }, { "docid": "11511116", "title": "", "text": "Cir.2000). 5. Service on and Liability of the Administrative Committees of the Plans as Unincorporated Associations Federal Rule of Civil Procedure 17(b), addressing “Capacity to Sue or to be Sued” for a federal statutory claim, indicates in relevant part that other than an individual or a corporation, [i]n all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or the laws of the United States .... Defendants Enron Corp. Savings Plan Administrative Committee, the Administrative Committee of the Enron Corp. Cash Balance Plan, and the Administrative Committee of the Enron Employee Stock Ownership Plan identify themselves as “unincorporated associations,” but not under Texas law, and move to dismiss on the grounds that (1) they are not legal entities capable of being sued under the law of Texas, (2) retaining the Committees as parties to this action is “impractical, unnecessary, and inappropriate” under ERISA, (3) they have not been properly served, and (4) they should be dismissed because their individual committee members should be dismissed. Defendants argue that under the law of Texas “an unincorporated association is a voluntary group of persons without a charter formed by mutual consent for the purposes of promoting a common enterprise,” which includes “churches, voters’ groups, homeowners’ associations, unions, and social groups such as the Independent Order of Odd Fellows.” #231 at 2, citing inter alia Cox v. Thee Evergreen Church, 836 S.W.2d 167, 169 (Tex.1992); Citizens for Fair Taxes v. Sweetwater Indep. School Dist. Bd. of Trustees, 807 S.W.2d 451, 452 (Tex.App.—Eastland 1991), motion to file mandamus overruled; Dutcher v. Owens, 647 S.W.2d 948, 950 (Tex.1983). Committee Defendants argue that they do not fit the Texas definition of unincorporated associations because their service on the Plan Committees was not completely voluntary since the members" }, { "docid": "2180601", "title": "", "text": "to uphold the service of process against individual defendants Woosnam, Toye, and McGuire (but not Flamhaft). Woosnam, Toye, McGuire and defendant Woods are members of the International Games Committee which committee Clippers contends to be an unincorporated association, thus rendering its members amenable to service in accordance with the rules governing service on members thereof. While it is true that the members of an unincorporated association may be individually liable for their acts, we need not reach that question, for we are convinced that the International Games Committee is just what it purports to be, a committee and not an unincorporated association. In determining whether the International Games Committee is an unincorporated association, we look to the law of the state which “created” it. See Sanchez v. Bowers, 70 F.2d 715, 717 (2d Cir. 1934). The law of New York, that state under which the International Games Committee was “created,” tells us that an unincorporated association is, [A]n organization composed of a body of persons united without a charter for the prosecution of some common enterprise. Meinhart v. Contresta, 194 N.Y.S. 593, 594 (Sup.Ct. Spec.Term 1922). See also Martin v. Curran, 303 N.Y. 276. 101 N.E.2d 683, 685 (Ct.App. 1951); Heifetz v. Rockaway Point Volunteer Fire Dept., 282 App.Div. 1062, 126 N.Y.S.2d 604 (1953), aff’g 124 N.Y.S.2d 257, 260 (Sup.Ct. Spec.Term 1953). This definition is in agreement with that generally used in state and federal courts throughout the United States. See Hecht v. Malley, 265 U.S. 144, 157, 44 S.Ct. 462, 68 L.Ed. 949 (1924); Penrod Drilling Company v. Johnson, 414 F.2d 1217, 1222 (5th Cir. 1969); Yonce v. Miners Memorial Hospital Ass’n, 161 F.Supp. 178, 186 (W.D.Va.1958); 6 Am. Jur.2d Associations and Clubs § 1 at 429-430. Here, however, we have only the most informal and transitory of organizations. Although the International Games Committee was a standing committee of USSAF even prior to the execution of the April, 1968, agreement, it has no charter, by-laws or articles, no office or place of business, no mailing address, no bank account, no assets or obligations, and has never transacted any business." }, { "docid": "2180602", "title": "", "text": "enterprise. Meinhart v. Contresta, 194 N.Y.S. 593, 594 (Sup.Ct. Spec.Term 1922). See also Martin v. Curran, 303 N.Y. 276. 101 N.E.2d 683, 685 (Ct.App. 1951); Heifetz v. Rockaway Point Volunteer Fire Dept., 282 App.Div. 1062, 126 N.Y.S.2d 604 (1953), aff’g 124 N.Y.S.2d 257, 260 (Sup.Ct. Spec.Term 1953). This definition is in agreement with that generally used in state and federal courts throughout the United States. See Hecht v. Malley, 265 U.S. 144, 157, 44 S.Ct. 462, 68 L.Ed. 949 (1924); Penrod Drilling Company v. Johnson, 414 F.2d 1217, 1222 (5th Cir. 1969); Yonce v. Miners Memorial Hospital Ass’n, 161 F.Supp. 178, 186 (W.D.Va.1958); 6 Am. Jur.2d Associations and Clubs § 1 at 429-430. Here, however, we have only the most informal and transitory of organizations. Although the International Games Committee was a standing committee of USSAF even prior to the execution of the April, 1968, agreement, it has no charter, by-laws or articles, no office or place of business, no mailing address, no bank account, no assets or obligations, and has never transacted any business. In fact, it appears that this committee has never even met. Accordingly, we find that the International Games Committee is not an unincorporated association and that defendants Woosnam, Toye and McGuire are not amenable to service of process in the instant action by reason of their membership in said committee. In reaching this conclusion we are aware that it is the reality of the functions performed by a group and not its formal title which is dispositive of its legal status; certainly, even a so-called committee may be an unincorporated association in the eyes of the law. See Rosen v. Alleghany Corporation, 133 F.Supp. 858, 867 (S.D.N.Y. 1955); Lawson v. Clawson, 177 Md. 333, 9 A.2d 755, 759 (Md.1939). Despite Clippers’ contentions, we do not find that the International Games Committee is an unincorporated association, nor does it appear to be an attempt to immunize an arrangement designed to stifle competition by adopting a membership scheme aimed at accomplishing that purpose. See Associated Press v. United States, 326 U.S. 1, 19, 65 S.Ct. 1416, 89" }, { "docid": "22698366", "title": "", "text": "a charter “ but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.” These definitions, while helpful, are not to be pressed so far as to make mere formal procedure a controlling test. The provision itself negatives such a construction. Thus unincorporated joint-stock companies have generally been regarded as bearing the closest resemblance to corporations. But, in the revenue acts, associations are mentioned separately and are not to be treated as limited to “ joint-stock companies,” although belonging to the same group. While the use of corporate forms may furnish persuasive evidence of the existence of an association, the absence of particular forms, or of the usual terminology of corporations, cannot be regarded as decisive. Thus an association may not have “ directors ” or “ officers,” but • the “ trustees ” may function “ in much the same manner as the directors in a corporation ” for the purpose of carrying on the enterprise. The regulatory provisions of the trust instrument may take the place of “ by-laws.” And as there may be, under the reasoning in the Hecht case, an absence of control by beneficiaries such as is commonly exercised by stockholders in a business corporation, it cannot be considered to be essential to the existence of an association that those beneficially interested should hold meetings or elect their representatives. Again, while the faculty of transferring the interests of members without affecting the continuity of the enterprise may be deemed to be characteristic, the test of an association is not to be found in the mere formal evidence of interests or in a particular method of transfer. What, then, are the salient features of a trust — when created and maintained as a medium for the carrying on of a business enterprise and sharing its gains — which may be regarded as making it analogous to a corporate organization? A corporation, as an entity, holds the title to the property embarked in the corporate undertaking. Trustees, as a continuing body with provision for succession, may afford a corresponding advantage during" }, { "docid": "20123393", "title": "", "text": "Local 4076, United Steelworkers v. United Steelworkers, 327 F.Supp. 1400, 1403 (W.D.Pa.1971) defined it as “a voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective”; and the court in Murray v. Sevier, 50 F.Supp.2d 1257, 1274 (M.D.Ala.1999), defined it as “a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some en terprise.” While all of these definitions describe an unincorporated association as a collection of persons working together for a common objective, they also describe it as an entity operating without a corporate charter. The Court finds this latter characteristic determinative of whether an unincorporated division of a corporation meets the definition of an unincorporated association. Unlike the unincorporated associations defined above, a division of a corporation does operate with a charter— the charter of the larger corporation. Although the division is not separately incorporated, it is still governed by the terms of the corporate charter and still enjoys corporate status because it is a unit of the larger corporation. Thus, the Court concludes that the federal law definition of an unincorporated association does not encompass an unincorporated division of a corporation. The Court’s construction of “unincorporated association” comports with the policy behind Rule 17(b)(1). The federal law exception embodied in Rule 17(b)(1) serves two purposes. First, it prevents state law from frustrating the enforcement of federal substantive rights where state law does not grant unincorporated associations and partnerships the capacity to be sued. 2 Moore’s Manual of Federal Practice & Procedure § 13.02(7) (1998). Second, it “eliminates the need to individually sue all members of the association or partnership, if the membership is so large that joinder is impracticable to maintain suit against the members as a class.” Id.; accord Law v. National Collegiate Athletic Ass’n, 167 F.R.D. 464, 474-76 (D.Kan.1996), vacated on other grounds, 96 F.3d 1337 (10th Cir.1996). Neither of these interests, however, is advanced by treating an unincorporated division of a corporation as an unincorporated association under Rule" } ]

[ { "docid": "22545747", "title": "", "text": "in the fact that arbitrariness is no stranger to the law. Ibid. The Court is, of course, correct that arbitrariness sometimes arises from the application of rules and laws to the complexity of human experience. Far less understandable is the Court’s willingness to aggravate, rather than alleviate, that arbitrariness, particularly when the decision to do so is demonstrably at odds with the language, purpose, and history of the Rule. I respectfully dissent. See Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 American Bar Assn. Reports 395, 404-405 (1906). Rule 4(j) states in its entirety: “If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule.” Rule 15(c) provides: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. “The delivery or mailing of process to the United States Attorney, or his designee, or the Attorney General of the United States, or an agency or officer who would" } ]

[ { "docid": "18973972", "title": "", "text": "Relation Back for Additional Underwriter Defendants The Underwriter Defendants also move to dismiss the claims against the Additional Underwriter Defendants as time-barred because the Additional Underwriter Defendants were not added to the action until the Alaska Plaintiffs filed an amended complaint on September 24, 2003. Plaintiffs do not respond directly to this argument. Rule 15 of the Federal Rules of Civil Procedure provides that an amended pleading relates back to the date of the original timely pleading when: (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within [120 days] the party to be brought in by amendment (A) has received such notice of this institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c)(emphasis supplied). Thus, there are three requirements to be met before an amended complaint naming a new party can be found to relate back to a timely complaint: (1) both complaints must arise out of the same conduct, transaction or occurrence, (2) the additional defendant must have been omitted from the original complaint by mistake; and (3) the additional defendant must not be prejudiced by the delay. VKK Corp. v. National Football League, 244 F.3d 114, 128 (2d Cir.2001); Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir.1996). The relation-back principles are designed “to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense.” VKK Corp., 244 F.3d at 128 (citation omitted). A “mistake” for purposes of Rule 15 may be a mistake of either fact or law. See Soto, 80 F.3d at 35-36. A mistake of" }, { "docid": "9747009", "title": "", "text": "Plaintiffs in their memorandum of law opposing the motion to dismiss, “request leave of Court to further amend the complaint in [the NYPA action], by interlineation of the caption, substituting” Westinghouse for WEDCO. Plaintiffs rely on Rule 15(c), Fed.R.Civ.P., which provides, in relevant part: An Amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3)the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Rule 15(c), Fed.R.Civ.P. Rule 15(e) thus requires that each of the following requirements be met: (1) the claim must have arisen out of conduct set out in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party should have known that, but for a mistake of identity, the original action would have been brought against it; and (4) the second and third criteria are fulfilled within 120 days of the filing of the original complaint, and the original complaint was filed within the limitations period. See Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-69 (2d Cir.1995). The claims against Westinghouse that plaintiffs argue should relate back to the filing of the original complaint are (1) various “intentional torts,” which the Court above" }, { "docid": "21031156", "title": "", "text": "28, 1998, nearly six months after the two year limitation period had expired. Consequently, at first glance, it appears that Plaintiffs claims against Olin are time-barred. Yet, Plaintiff argues that the amendment to her Complaint relates back to the date that she filed her original Complaint, thereby making her claims against Olin timely. (Resp. to Olin at 2-5.) In advancing this argument, Plaintiff relies on Rule 15(c) of the Federal Rules of Civil Procedure. Under Rule 15(c), an amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations apr plicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint!, 120 days after filing of the complaint], the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c). Plaintiff argues that the amendment to her Complaint meets the requirements of Rule 15(c)(3) and that Olin’s Motion For Summary Judgment should, therefore, be denied. (Resp. to Olin at 3-5.) In contrast, Olin contends that Rule 15(c) is not applicable to this matter. (Olin’s Sur-Reply at 2.) In support of this contention, Olin argues that the two year limitation period in AlaUode § 6-5-410 (Alabama’s Wrongful Death Statute), is a statute of creation, not a statute of limitations, to which relation back under Rule 15(c) does not apply in Aabama unless a plaintiff has employed the fictitious" }, { "docid": "23606251", "title": "", "text": "of the statute of limitations, should relate back to the filing date of the initial complaint. We disagree. Federal Rule of Civil Procedure 15(c) permits amendment of a pleading to relate back to the date of the original pleading when: (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and ... the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.... Fed.R.Civ.P. 15(c). Relying on Varlack v. SWC Caribbean, Inc., 550 F.2d 171 (3d Cir.1977), Cocchi and Beddingfield claim subparagraph (3) of Rule 15(c) allows the amendment, coming more than two years after expiration of the statute of limitations and naming them as plaintiffs, to relate back to the original action. But for appellants’ claims to relate back, all three conditions specified in Rule 15(c)(3) must be satisfied. Appellants’ argument fails because they have not demonstrated “a mistake concerning the identity of the proper party.” Statutes of limitations ensure that defendants are “protected against the prejudice of having to defend against stale claims, as well as the notion that, at some point, claims should be laid to rest so that security and stability can be restored to human affairs.” Cunningham, 530 A.2d at 409 (citations omitted). In order to preserve this protection, the relation-back rule requires plaintiffs to show that the already commenced action sufficiently embraces the amended claims so that defendants are not unfairly prejudiced by these late-coming plaintiffs and that plaintiffs" }, { "docid": "7734158", "title": "", "text": "affidavits in support of their respective positions. . Fed.R.Civ.P. 15(c) states in pertinent part: (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. (emphasis added). . Farrell, supra, permitted an amended complaint, in circumstances similar to the instant case, to relate back to the filing of the original complaint and thus allowed an action which would otherwise have been time barred. . R. 4:9-3 reads: When Amendments Relate Back Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. . C.C.P. § 340(3)" }, { "docid": "12257600", "title": "", "text": "Because Leonard amended his complaint to substitute Parry for Boulanger after the statute of limitations expired, his appeal turns on whether this modification “related back” to the inception of the action. The touchstone for such an inquiry is Rule 15(c)(3). It provides that an amendment which changes the party or the naming of the party against whom a claim is asserted relates back to the date of the original complaint if — and only if — the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading and, within the .period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c)(3). As, written, Rule 15(c)(3) has three requirements. The first (same transaction) clearly is satisfied here: both the original and the amended complaints derive from precisely the same conduct. So, too, the second requirement (timely notice): Parry concedes that Leonard served her within the 120-day default period prescribed by Rule 4(m). This leaves only the third requirement: knowledge of a mistake in identity. To satisfy this criterion, the amendment’s proponent must show not only that he made a mistake anent the proper party’s identity, but also that the later-named party, within the prescribed time limit, knew or should have known that, but for this mistake, the action would have been brought against her. In this instance, it is plain from the face of the original complaint — which erroneously stated that Boulanger was driving at the time of the accident — that Leonard made a mistake concerning the identity of the proper party defendant. See generally Webster’s Ninth New Collegiate Dictionary 760 (1983) (defining “mistake” as “a wrong" }, { "docid": "4101975", "title": "", "text": "the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(j) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c)(3) addresses the circumstances in this case. The first requisite for relation back under Fed.R.Civ.P. 15(c)(3) incorporates Fed.R.Civ.P. 15(c)(2) which requires that the claim or defense asserted in the amended pleading must have arisen out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Once this is satisfied, it must be shown that within the period provided in Fed.R.Civ.P. 4(j), i.e. 120 days after the filing of the complaint, the party to be brought into the suit has received notice of the action such that he will not be prejudiced in maintaining a defense on the merits and that the party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Applying these requirements to this case, there is no question that the original and amended complaints clearly involve the same conduct. However, with regard to the notice requirement, we are not convinced that O’Hara had such notice of the suit during the 120 days following the filing of the original complaint that his defense will not now be prejudiced. O’Hara does not contend that he did not have general knowledge of the lawsuit. However, he argues that the first notice he had that he was being sued in his individual capacity was when Mrs." }, { "docid": "2121594", "title": "", "text": "in Title VII, is sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an “employer” of an aggrieved individual as that term has generally been defined at common law). Because the Village may be liable as an employer under Title VII, its motion to dismiss on this ground must be denied. As to the Board, the filing of the amended complaint relates back to the filing of the original complaint. Because plaintiff filed his original complaint against the Village within 90 days of receipt of the Notice of Right to Sue, his amended complaint, naming the Board as an additional party defendant to the same Title VII claim, is deemed to have been timely filed. Rule 15(c) of the Federal Rules of Civil Procedure provides that an amended pleading that changes the party against whom a claim is asserted shall relate back to the date of the original pleading when (1) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading; (2) the party to be brought in by amendment has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and (3) the party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. The requirements of Rule 15(c) have been met in this case. Count I of the amended complaint merely names the Board as an additional defendant to the Title VII claim asserted against the Village in the original complaint and thus arises out of the same conduct, transaction or occurrence set forth in the original pleading. The Board knew or should have known of the institution of plaintiffs action because it was named in the employment discrimination charge that plaintiff filed with the EEOC. The Board will not be prejudiced in the maintenance of its defense because it is represented by" }, { "docid": "22587301", "title": "", "text": "original pleading when * H* H* (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and ... the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c)(2), (3). Thus, in the circumstances presented here, an amendment that changes the party against whom a claim is asserted relates back to the date of the original pleading if (1) the claim in the amended complaint arose out of the same transaction that formed the basis of the claim in the original complaint; (2) the party to be brought in by the amendment received notice of the action such that it will not be prejudiced in maintaining a defense to the claim; and (3) it should have known that it would have originally been named a defendant “but for a mistake concerning the identity of the proper party.” These requirements of Rule 15(c) reflect a subtle and complex compromise of two competing policies: On the one hand, the Federal Rules favor simplicity in pleadings, see Fed.R.Civ.P. 8(a), and their liberal amendment, see Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), as well as the administration of cases to secure their just determination, see Fed.R.Civ.P. 1. On the other hand, statutes of limitations are legislative determinations that give defendants predictable repose from claims after the passage of a specified time, and courts must, in recognition of the separation of powers, hesitate to extend or ignore them for judicially created reasons. See Lyons P’ship, L.P. v. Morris" }, { "docid": "11656851", "title": "", "text": "turn to Rule 15(c) of Fed.R.Civ.P. Under certain conditions specified in Rule 15(c), an amendment to a complaint is deemed to relate back to the time of the filing of the original pleading. In the instant case, such relation back would obviate any question of timeliness. Rule 15(c) states in pertinent part: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Although courts do not agree on whether the terminology “changing the party” can encompass “adding a party”, this Court will assume that such an addition is permissible and will proceed to test plaintiffs’ amendment against the explicit requirements of the rule. Plaintiffs’ amendment adding Santa Fe as a defendant clearly meets the requirement of arising out of the same occurrence set forth in the original pleading. The notice requirement of Rule 15(c) (1) has not, however, been met. Notice of an injury is not the same as “notice of the institution of the action” , and plaintiffs have failed to show that within three years of the alleged injury, Santa Fe had any notice of the suit against Amoco. Further, even if Santa Fe had timely knowledge of the suit against Amoco, Rule 15(e) (2) requires that a party “knew or should have known that, but for a mistake concerning the identity”, the suit would have been against it. In this case, plaintiffs were aware of" }, { "docid": "7083737", "title": "", "text": "the identity of the proper party” in Rule 15(c)(3)(B) of the Federal Rules of Civil Procedure. Rule 15(c)(3) provides: An amendment of a pleading relates back to the date of the original pleading when ... (3) the amendment changes the party or the naming of the party against whom a claim is asserted ... and ... the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Rendall-Speranza did not name the IFC as a defendant until after it had filed its amicus curiae brief in her case against Nas-sim because, she says, until the IFC stated in its brief that Nassim was acting within the scope of his duties at the time of the August 25, 1994 incident she had no reason to think that the IFC might be liable for the battery. According to Rendall-Speranza, a plaintiffs mistaken belief that A is liable for a tort against her when in fact B is the responsible party is “a mistake concerning the identity of the proper party” within the contemplation of Rule 15(c) even where, as here, the mistake is one of legal judgment rather than a mere misnomer. Rendall-Speranza’s broad interpretation of “a mistake of identity” does not serve the evident purpose of the rule, which is to avoid the harsh consequences of a mistake that is neither prejudicial nor a surprise to the misnamed party. A potential defendant who has not been named in a lawsuit by the time the statute of limitations has run is entitled to repose — unless it is or should be apparent to that person that he is the beneficiary of a mere slip of the pen, as it were. Under Rendall-Speranza’s approach, however, one would not be sure that he could rely upon the repose promised by the statute of limitations" }, { "docid": "3363880", "title": "", "text": "amended complaint was filed 156 days after the E.E.O.C. issued de Jesús a right to sue letter, far in excess of the ninety (90) day limit imposed by 42 U.S.C. § 2000e-5(f)(l). Accordingly it prays for a dismissal of the claim. In response, the plaintiff contends that Rule 15(c)(3) dictates that the amended complaint correctly naming “Almacenes Pitusa, Inc.” as the defendant relates back to the original complaint that was filed within the 90 day statutory period in accordance with 42 U.S.C. § 2000e-5(f)(l). Rule 15(c) of the Federal Rules of Civil Procedure, as amended in 1991, states in pertinent part that: (c) Relation Back of • Amendments. An amendment of a pleading relates back to the date of the original pleading when (1) ... (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Rule 15(c) requires the plaintiff to prove three things: first, that the amended complaint arose out of the same facts as the original complaint; second, that within 120 days of filing the complaint (or longer for good cause shown) the proposed defendant had notice of the proposed action; and third that within that same time period the proposed defendant knew or should have known that but for a mistake in the identity of the party the action would have been brought against the proper party. Ocasio Ortiz v. Betancourt Lebrón, 146 F.R.D. 34," }, { "docid": "15950160", "title": "", "text": "215(3) of the CPLR. Nor does Unicure argue that the Amended Complaint was filed within the applicable limitations periods. Rather, it argues that pursuant to Fed.R.Civ.P. rule 15(c), the Amended Complaint relates back to the time of the filing of the original Complaint and is therefore timely. Rule 15(c) provides in pertinent part: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom-a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” The general purpose of rule 15(c) is to permit an amended pleading which would otherwise be barred by the statute of limitations, provided that the original pleading gave fair notice of the general factual situation out of which the claim sought to be put forth in the amended pleading arises. See, 3 Moore’s Federal Practice, ¶ 15.15[3], at 15-194. If adequate notice is provided by the original pleading, the purpose of the statute of limitations to require notice of a claim within a certain period of time has been satisfied. The threshold requirement for relation back under rule 15(c) is that the claim(s) sought to be asserted in the amended pleading must arise out of the same essential transaction set forth in the original pleading. This requirement is satisfied if the latter provided the defendant with “fair notice that litigation is arising out of a specific factual situation.” Longbottom v. Swaby, 397 F.2d 45, 48 (5th Cir.1968). In one sense, Unicure has provided such notice in" }, { "docid": "10502148", "title": "", "text": "injury as a result of the alleged breach of warranty, however, his claim sounds in tort and is governed by K.S.A. 60-513. See Arnold v. Riddell, Inc., 853 F.Supp. 1488 (D.Kan.1994) (cause of action sounds in tort where breach of warranty results in personal injury). Thus, both of plaintiffs claims against TPM fall under the two-year limitations period. Plaintiff did not file the second amended complaint substituting TPM for John Doe Construction Company until May 12, 1994, more than two years after his cause of action accrued. Thus, plaintiffs claims against TPM are barred by the statute of limitations unless they relate back to the date the original complaint was timely filed on March 7, 1994. Rule 15(c)(3) of the Federal Rules of Civil Procedure governs whether such amendment relates back. Watson v. Unipress, Inc., 733 F.2d 1386, 1389 (10th Cir.1984). Under Rule 15(c)(3), an amended pleading relates back to the date of the original pleading when the amendment changes the party or the naming of the party against whom a claim is asserted if [the claim arose out of the conduct, transaction, or occurrence set forth in the original pleading] and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party- Relation back under 15(c)(3) is dependent on the following four factors, all of which must be satisfied: (1) the claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining a defense; (3) the party to be brought in must or should have known that but for a mistake of identity the action would have been brought against it; and" }, { "docid": "14718909", "title": "", "text": "However, the district court subsequently granted defendants’ Rule 12(b)(6) Motion to Dismiss on the ground that the officers were not named as individual capacity defendants until March 18, 1997, after the applicable two-year statute of limitations had expired, as the incident in question occurred on March 11, 1995. We believe the district court erred and that the Second Amended Complaint relates back to April 10, 1996, the date of the original pleading, under Rules 15(c)(2) and 15(c)(3) of the Federal Rules of Civil Procedure. Rule 15(c), as amended in December 1991, provides, in pertinent part: An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided for by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(e) (emphases added). Note that each of the conjunctions connecting the three parts of Rule 15(c) is “or,” not “and”. The rule is based on the notion that once litigation involving particular conduct or a given transaction or occurrence has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of defenses or claims that arise out of the same conduct, transaction, or occurrence as set forth in the original pleading. Thus, the rule states that" }, { "docid": "22893135", "title": "", "text": "Cir.1988). If a complaint is amended to include an additional defendant after the statute of limitations has run, the amended complaint is not time barred if it “relates back” to a timely filed complaint. See Fed.R.Civ.P. 15(c). The goal of relation-back principles is “to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense.” Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19 (2d Cir.1997) (quoting Fed.R.Civ.P. 15 Advisory Committee Note (1991)) (internal quotation marks omitted). Rule 15(c) of the Federal Rules of Civil Procedure describes the requirements necessary for an amended complaint to relate back to an original complaint: An amendment of a pleading relates back to the date of the original pleading when (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within [120 days of filing the complaint], the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. There are thus three requirements that must be met before an amended complaint that names a new party can be deemed to relate back to the original timely complaint. First, both complaints must arise out of the same conduct, transaction, or occurrence. Second, the additional defendant must have been omitted from the original complaint by mistake. Third, the additional defendant must not be prejudiced by the delay. See Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35-36 (2d Cir.1996). VKK’s amended complaint meets all three requirements. First, both the original and the amended complaints arise out of" }, { "docid": "7083736", "title": "", "text": "therefore, this court may be able to dispose of the entire case and thus to economize on the use of judicial resources. In addition, the issues raised by the IFC’s various claims of immunity, and particularly the issue of the effect (if any) that the FSIA has upon the IOIA, are both difficult and, because of their implications for the foreign relations of the United States, delicate. If they can be avoided merely by advancing the time at which the court reaches its decision upon the statute of limitation defense, then they should be. Therefore, though we exercise pendent appellate jurisdiction “sparingly,” Gilda Marx, 85 F.3d at 678, we think that in this case the statute of limitations, a threshold issue in the district court, is best dealt with at the threshold of this interlocutory appeal. B. The Claim against the IFC for Battery Whether the district court properly excused Rendall-Speranza’s failure to add the IFC as a defendant until after the statute of limitations had run depends upon the meaning of “a mistake concerning the identity of the proper party” in Rule 15(c)(3)(B) of the Federal Rules of Civil Procedure. Rule 15(c)(3) provides: An amendment of a pleading relates back to the date of the original pleading when ... (3) the amendment changes the party or the naming of the party against whom a claim is asserted ... and ... the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Rendall-Speranza did not name the IFC as a defendant until after it had filed its amicus curiae brief in her case against Nas-sim because, she says, until the IFC stated in its brief that Nassim was acting within the scope of his duties at the time of the August 25, 1994 incident she had no reason to think" }, { "docid": "2192264", "title": "", "text": "Lombardi first argues that the claims are time-barred under the applicable statute of limitations. Assault and battery must be brought within one year of the occurrence. See N.Y. C.P.L.R. § 215(3). Plaintiff filed her original Complaint, absent the common law claims but inclusive of the same general factual allegations giving rise to those claims, in September of 1999. She thereafter moved to amend her complaint to include the common law claims on May 22, 2000. She attached the Second Amended Complaint, as a proposed amendment, to the motion to amend. After obtaining leave to amend from this court, she filed the Second Amended Complaint in October of 2000. Lombardi claims that the factual allegations, most of which appear to have occurred before July of 1999, are barred by the one-year statute of limitations. Plaintiff counters that her tort claims relate back to the date she filed her original Complaint. A plaintiff seeking to add a defendant through claims which would be barred by the statute of limitations must do so under the provisions of Rule 15(c) of the Federal Rules of Civil Procedure. See MooRe’s Federal Practice 3D § 15.19[3][a] (2000). Rule 15(c) states that, for statute of limitations purposes: An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and ... the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been" }, { "docid": "9429874", "title": "", "text": "the Federal Rules of Civil Procedure provides in relevant part: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Plaintiff submits that his second amended complaint naming SBF and Ganzer relates to the same transaction as set forth in the original complaint and that these two defendants “have at all times had notice of the institution of the pending action.” Doc. 10, at 3. Before an amended petition may “relate back” to the original petition, all the requirements of Fed.R.Civ.P. 15(c) must be met. Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986); Watson v. Unipress, Inc., 733 F.2d 1386, 1389-90 (10th Cir.1984). (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; (4) the second and third requirements must have been fulfilled within their prescribed limitations period. Schiavone, 477 U.S. at 29, 106 S.Ct. at 2384. Defendant argues that plaintiffs second amended petition does not relate back to the original petition because plaintiff made no “mistake” concerning identity within the statutory period. Under the third" }, { "docid": "11007360", "title": "", "text": "name Monge as a defendant, and plaintiffs Felix and Cornielle seek to amend their complaint to name O'Flaherty as a defendant. Discussion Because the statute of limitations, which the parties agree is three years and which commenced on August 16, 1988, has run, the amendment must “relate back” to the dates of the original complaints in order to withstand a statute of limitations defense. Federal Rule of Civil Procedure 15(c) governs the relation back of amendments, and provides in pertinent part: An amendment changing the party against whom a claim is asserted relates back if [the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading] and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The Supreme Court, in Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986), has interpreted Rule 15(c) to have four requirements: Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) the party must or should have known that, but for a mistake concerning its identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. There is no dispute as to requirements (1) or (4), to the extent that requirements (2) and (3) are established. Notice Plaintiffs claim that O’Flaherty received actual notice through the letter of" } ]

[ { "docid": "9959845", "title": "", "text": "not be cut off “where the economic impact ... [of the restraint] is not immediately obvious.” Indiana Dentists, supra, 476 U.S. at 459, 106 S.Ct. at 2018. If the particular restraint under attack is arguably “ancillary” to a lawful purpose, see United States v. Addyston Pipe & Steel Co., 85 F. 271, 281-82 (6th Cir.1898), aff'd as modified, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899), and seems capable of enhancing competition rather than suppressing it, then the Rule of Reason applies. The restraint should not be condemned without examining its “redeeming virtues.” This is as true, moreover, for restraints with overtones of a group boycott as for others. See Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985). A quick look here does not yield any absolute conclusions about the probable impact of the 5-game reduction. Arguably, controlling the number of NBA games available on superstations could enable the NBA to compete more effectively in the television marketplace against other programming, justifying the restraint. Cf. Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 726, 108 S.Ct. 1515, 1521, 99 L.Ed.2d 808 (1988) (“inter-brand competition is the primary concern of the antitrust laws”); Sylvania, supra, 433 U.S. at 54-56, 97 S.Ct. at 2559-2560 (discussing the redeeming, procompetitive virtues of intrabrand restraints). See also NCAA, 468 U.S. at 115 n. 56, 104 S.Ct. at 2968 n. 56, citing GTE Sylvania (“If the NCAA faced ‘interbrand’ competition from available substitutes, then certain forms of collective action might be appropriate in order to enhance its ability to compete.”). At a glance, it is not possible to say that the 5-game reduction, though it clearly restrains competition, is “a naked restraint of trade with no purpose except stifling of competition” and with no possibility for promoting it. Accordingly, the Rule of Reason applies. The object of a Rule of Reason inquiry, as in any antitrust analysis, is “to form a judgment about the competitive significance of the [challenged] restraint.” National Society of Professional Engineers v. United States, 435 U.S." } ]

[ { "docid": "22971615", "title": "", "text": "thus appears that no transportation product has \"reasonable interchangeability” with NOVA non-interruptible transportation. MPC makes no substantive argument to the contrary. . Natural gas transportation customers testified that MPC's offering five-year assignments of NOVA non-interruptible transportation had a procompetitive effect in a separate market: the market for natural gas as a commodity. Once customers acquired five-year assignments of NOVA transportation rights, they believed they gained flexibility to choose from competing suppliers of natural gas. Customers’ improved power to choose from competing natural gas suppliers undoubtedly is pro-competitive in the market for natural gas. It may be, however, that this procompetitive effect should not be considered in our rule of reason analysis, based on the theory that pro-competitive effects in a separate market cannot justify anti-competitive effects in the market for pipeline transportation under analysis. This theory might find some support in the Supreme Court’s comment that competition \"cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy.” United States v. Topco Assocs., Inc., 405 U.S. 596, 610, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). \"If a decision is to be made to sacrifice competition in one portion of the economy for greater competition in another portion this too is a decision that must be made by Congress and not by private forces or by the courts.” Id. at 611, 92 S.Ct. 1126. See also Sullivan v. Nat’l Football League, 34 F.3d 1091, 1112 (1st Cir.1994) (suggesting that it is \"improper to validate a practice that is decidedly in restraint of trade simply because the practice produces some unrelated benefits to competition in another market”). On the other hand, perhaps that language from Topeo is not controlling because it is a dictum or incomplete or obsolete or because the case of such closely related markets as those for transport of natural gas and the natural gas itself might be distinguished. In any event, we need not and do not reach this issue on the permissible bounds of rule" }, { "docid": "2206012", "title": "", "text": "10 opinion, the court first examined the salary restraints imposed by the NFL Defendants and held that the restraints were subject to the antitrust laws. The court then looked to see whether the restraints were imposed in violation of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 (1973 & Supp.1991). After finding that the wage-fixing could not be termed a per se violation of the antitrust laws, the court turned to a Rule of Reason analysis. It is this analysis defendants today challenge. The Rule of Reason requires the judge to balance the anti-competitive evils of a practice against its pro-competitive virtues. On the negative side of this balance, the court noted that the salary restraints clearly were anti-competitive in effect. On the other half of this balance, however, the court found no pro-competitive virtues. The court held that two pro-competitive purposes advanced by the defendants — enhanced competition in the labor market for professional football players and the creation of otherwise unavailable football employment opportunities— were irrelevant for lack of correlation between the restraints and the pro-competitive purposes. A third justification, the maintenance of a competitive balance among football teams, was deemed irrelevant under the D.C. Circuit’s holding in Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C.Cir.1978). In Smith, a professional football player challenged the NFL’s player draft as viola-tive of § 1 of the Sherman Antitrust Act. Under the Rule of Reason analysis, the NFL asserted the draft’s ultimate pro-competitive effect justified the draft system despite its anti-competitive evils. The NFL claimed that the player draft promoted a “competitive balance” among teams, thus “producing better entertainment for the public, higher salaries for the players, and increased financial security for the clubs.” 593 F.2d at 1186. However, the D.C. Circuit held that the pro-competitive virtues, which were evident only on the playing field, could not be compared to the anti-competitive evils, which were apparent solely in the market for player services. Id. As a result, the player draft was held to be unreasonable and a violation of the Sherman Act. This court found that" }, { "docid": "4111766", "title": "", "text": "choice has substantial practical consequences, however; if a plaintiff establishes that the restraint warrants per se treatment, unreasonableness is presumed and liability under the Sherman Act is proved without more. Under the rule-of-reason approach, on the other hand, the plaintiff must put on evidence of anticompetitive effect, to be weighed against whatever benefits to competition are generated by the challenged conduct. The rule in the Second Circuit is explicit: “Unlike a per se price-fixing case, a Rule-of-Reason case requires the fact finder to balance the procompetitive and anticompetitive effects of any restraint.” U.S. Football League v. National Football League, 842 F.2d 1335, 1360 (2d Cir.1988) (emphasis in original). An intent to exclude competition is not by itself sufficient to establish a § 1 violation. Id. “Animosity, even if rephrased as ‘anticompetitive intent’, is not illegal without anticompetitive effects.” Schachar v. American Academy of Ophthalmology, Inc., 870 F.2d 397, 400 (7th Cir.1989). Plaintiffs contend that the allegations in their complaint charge defendants with a “group boycott” and a “concerted refusal to deal” with plaintiffs, conduct that requires application of the per se rule. Defendants maintain to the contrary that the rule of reason should control, and because the complaint fails to allege any adverse effects on the Holstein market in which plaintiffs competed, it must be dismissed under U.S. Football League for failure to plead the essential elements of a § 1 claim. Both sides begin with a sound premise but draw an unsound inference. The court agrees with plaintiffs in their contention that the complaint alleges behavior on the part of defendants that may properly be described as a group boycott or a concerted refusal to deal. See Volvo North American Corp. v. Men’s Int’l Professional Tennis Council, 857 F.2d 55, 73 (2d Cir.1988). Furthermore, the Supreme Court “has long held that certain concerted refusals to deal or group boycotts are so likely to restrict competition without any offsetting efficiency gains that they should be condemned as per sé violations of § 1 of the Sherman Act.” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. at" }, { "docid": "2206013", "title": "", "text": "correlation between the restraints and the pro-competitive purposes. A third justification, the maintenance of a competitive balance among football teams, was deemed irrelevant under the D.C. Circuit’s holding in Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C.Cir.1978). In Smith, a professional football player challenged the NFL’s player draft as viola-tive of § 1 of the Sherman Antitrust Act. Under the Rule of Reason analysis, the NFL asserted the draft’s ultimate pro-competitive effect justified the draft system despite its anti-competitive evils. The NFL claimed that the player draft promoted a “competitive balance” among teams, thus “producing better entertainment for the public, higher salaries for the players, and increased financial security for the clubs.” 593 F.2d at 1186. However, the D.C. Circuit held that the pro-competitive virtues, which were evident only on the playing field, could not be compared to the anti-competitive evils, which were apparent solely in the market for player services. Id. As a result, the player draft was held to be unreasonable and a violation of the Sherman Act. This court found that the salary restraints presently at issue were directly comparable to the player draft in Smith. Therefore, this court held the NFL defendants’ third pro-competitive justification, the promotion of competitive balance, irrelevant under the law of this circuit. With no relevant pro-competitive virtues left to balance the clear anti-competitive evils, the court determined that the salary restraints were violative of the antitrust laws and ordered summary judgment on liability for the plaintiffs. B. Defendants’ Motion to Reconsider. Defendants’ Motion to Reconsider is grounded on defendants’ reading oí the Supreme Court’s opinion in NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). In that case, the NCAA had imposed a restrictive television broadcasting plan for football games upon all its member universities. The University of Oklahoma challenged the restraint as a violation of antitrust laws. As in the present case, the Court did not find a per se violation of antitrust laws but nonetheless held the restraint reasonable under a Rule of Reason analysis. According to" }, { "docid": "10592933", "title": "", "text": "incompatible standards of conduct for the National Football League. Reynolds, 584 F.2d at 283. If individual players file separate actions seeking injunctive relief against NFL player restraints, there is a substantial risk of inconsistent or varying adjudications which would result in incompatible standards of conduct for the defendants. One court could grant injunctive relief, a second might deny such relief, and a third might grant injunctive relief that materially differs from that granted by the first court. See Robertson, 389 F.Supp. at 901. As the district court observed in Robertson, such: [differing results in the individual actions would impair the [professional sports league’s] ability to ‘pursue a uniform continuing course of conduct’ where pragmatic considerations require that the defendants act in the same manner to all members of the class. Id. (quotation omitted); cf. National Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. 85, 101, 104 S.Ct. 2948, 2960, 82 L.Ed.2d 70 (1984) (college football is “an industry in which horizontal restraints on competition are essential if the product is to be available at all”); Reynolds, 584 F.2d at 287 (noting in dicta that “[s]ome leveling and balancing rules appear necessary to keep the various [NFL] teams on a competitive basis”). The near certainty of such inconsistency is borne out by the history of litigation between players and the NFL. For example, in Mackey, the Eighth Circuit determined that the NFL’s interest in maintaining competitive balance between teams should be considered under the rule of reason for purposes of determining whether a veteran player restraint violated the Sherman Act. Mackey, 543 F.2d at 619-20. However, in Smith v. Pro Football, Inc., the Court of Appeals for the District of Columbia rejected the competitive balance justification as a matter of law, finding that under the rule of reason, the NFL’s interest in maintaining competitive balance, which the NFL argued was a pro-competitive effect, could not be balanced against the anticompetitive effects of the college draft. 593 F.2d 1173, 1186 (D.C.Cir. 1978); see also Brown v. Pro Football, Inc., Civ. No. 90-1071, slip op. at 19-23, 1992 WL 88039, at *9-10" }, { "docid": "3298860", "title": "", "text": "a balancing of alleged anticompetitive and procompetitive effects of a challenged practice in every definable market. The issue of defining the proper scope of a rule of reason analysis is a deceptive body of water, containing unforeseen currents and turbulence lying just below the surface of an otherwise calm and peaceful ocean. The waters are muddied by the Supreme Court’s decision in NCAA—one of the more extensive examples of the Court performing a rule of reason analysis—where the Court considered the value of certain procompetitive effects that existed outside of the relevant market in which the restraint operated. NCAA 468 U.S. at 115-20, 104 S.Ct. at 2967-70 (considering the NCAA’s interest in protecting live attendance at untelevised games and the NCAA’s “legitimate and important” interest in maintaining competitive balance between amateur athletic teams as a justification for a restraint that operated in a completely different market, the market for the telecasting of collegiate football games). Other courts have demonstrated similar confusion. See, e.g., L.A. Coliseum, 726 F.2d at 1381, 1392, 1397, 1399 (stating that the “relevant market provides the basis on which to balance competitive harms and benefits of the restraint at issue” but then considering a wide variety of alleged benefits, and then directing the finder of fact to “balance the gain to interbrand competition against the loss of intrabrand competition”, where the two types of competition operated in different markets). To our knowledge, no authority has squarely addressed this issue. On the one hand, several courts have expressed concern over the use of wide ranging interests to justify an otherwise anticompetitive practice, and others have found particular justifications to be incomparable and not in correlation with the alleged restraint of trade. Smith v. Pro Football, Inc., 593 F.2d 1173, 1186 (D.C.Cir.1978); Brown v. Pro Football Inc., 812 F.Supp. 237, 238 (D.D.C.1992); Chicago Pro. Sports Ltd. Partnership v. Nation al Basketball Ass’n, 754 F.Supp. 1336, 1358 (N.D.Ill.1991). We agree that the ultimate question under the rule of reason is whether a challenged practice promotes or suppresses competition. Thus, it seems improper to validate a practice that is decidedly in" }, { "docid": "22595169", "title": "", "text": "Dentists, 476 U.S. 447, 460-61, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986) (“Since the purpose of the inquiries into market definition and market power is to determine whether an arrangement has the potential for genuine adverse effects on competition, proof of actual detrimental effects, such as a reduction of output, can obviate the need for an inquiry into market power, which is but a surrogate for detrimental effects.” (internal quotation marks omitted)). If the plaintiff carries this burden, the court will need to decide whether the anticompetitive effects of the practice are justified by any countervailing pro-competitive benefits. See Eichorn v. AT & T Corp., 248 F.3d 131, 143 (3d Cir.2001) (describing an analysis in which courts “balance the effect of the alleged anti-competitive activity against its competitive purposes within the relevant product and geographic markets”); see also Leegin, 551 US. at 886, 127 S.Ct. 2705 (“In its design and function the rule [of reason] distinguishes between restraints with anti-competitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.”). Judicial experience has shown that some classes of restraints have redeeming competitive benefits so rarely that their condemnation does not require application of the full-fledged rule of reason. Paradigmatic examples are “horizontal agreements among competitors to fix prices or to divide markets.” Leegin, 551 U.S. at 886, 127 S.Ct. 2705 (citations omitted). Once a practice has been found to fall into one of these classes, it is subject to a “per se” standard. As the Supreme Court has explained, these practices are ordinarily condemned as a matter of law under an “illegal per se ” approach because the probability that these practices are anticompetitive is so high; a per se rule is applied when “the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output.” In such circumstances a restraint is presumed unreasonable without inquiry into the particular market context in which it is found. NCAA, 468 U.S. at 100, 104 S.Ct. 2948 (quoting Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441" }, { "docid": "7968406", "title": "", "text": "determines that a practice is illegal per se, no examination of the practice’s impact on the market or the procompetitive justifications for the practice is necessary for finding a violation of antitrust law. Id. The rule of reason, however, requires a court to analyze the history of the restraint and the restraint’s effect on competition. Id.; see Smith v. Pro Football, Inc., 593 F.2d 1173, 1183 (D.C.Cir.1978). The rule of reason analysis employs a burden-shifting framework. See California Dental Ass’n v. FTC, 526 U.S. 756, 775 n. 12, 119 S.Ct. 1604, 143 L.Ed.2d 935 (1999). First, the plaintiff must establish that the restraint produces significant anticompetitive effects within the relevant product and geographic markets. See Tanaka v. Univ. of Southern Cal., 252 F.3d 1059, 1063 (9th Cir.2001). “If the plaintiff meets this burden, the defendant must come forward with evidence of the restraint’s procompetitive effects” to establish that the alleged conduct justifies the otherwise anticompetitive injuries. Id.; see also United States v. Brown Univ., 5 F.3d 658, 666-69 (3d Cir.1993). If the defendant is able to demonstrate procompetitive effects, the plaintiff then must show that any legitimate objectives can be achieved in a substantially less restrictive manner. Law, 134 F.3d at 1019. The Supreme Court has stated that the per se rule is a “demanding” standard that should be applied only in clear cut cases. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); accord Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 178, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965) (finding that “the area of per se illegality is carefully limited.”). Therefore, “courts consistently have analyzed challenged conduct under the rule of reason when dealing with an industry in which some horizontal restraints are necessary for the availability of a product” such as sports leagues. Law, 134 F.3d at 1019. Moreover, the Supreme Court has recognized that in cases involving industries “in which horizontal restraints on competition are essential if the product is to be available at all,” the rule of reason analysis should apply." }, { "docid": "18649168", "title": "", "text": "determine whether it is significantly anticompetitive in purpose or effect. In making this evaluation, a court generally will be required to analyze “the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed.” If, on analysis, the restraint is found to have legitimate business purposes whose realization serves to promote competition, the “anticompetitive evils” of the challenged practice must be carefully balanced against its “procompetitive virtues” to ascertain whether the former outweigh the latter. A restraint is unreasonable if it has the “net effect” of substantially impeding competition. [Smith v. Pro Football, Inc., supra, 593 F.2d at 1183] Even were the “rule of reason” to be applied, plaintiffs must fail. On the one hand, plaintiffs have not demonstrated that the anticompetitive effects of the Class VI requirement would be significant at all in terms of the impact upon the relevant market. This is especially so in light of the fact that plaintiffs have full access to the market if they merely use reinsurance certificates. On the other hand, Congress has mandated that FNMA accept only mortgages which are “of such quality, type, and class” as to meet the standards of institutional investors. Further, FNMA is to promote uniformity in the field. Use of a standard governing hazard insurance promotes both those goals. Utilization of an objective standard is obviously necessary when one considers the tremendous volume of business being done in this area. In 1978, FNMA purchased 311,002 mortgages with an unpaid balance of $12,301,650,000. Anchor sold $16,478,360 worth of mortgages to FHLMC in 1978. Fidelity has approximately $140,000,000 in the mortgage portfolio which it services, about $62.8 million of this has been sold to FNMA or GNMA. With this volume of business, it is not feasible to adopt plaintiffs’ suggestion that each insurance company be analyzed individually. This would be a costly and time-consuming process for there are over two hundred companies competing in the hazard insurance market in Kansas alone. Plaintiffs claim that they are well-managed and therefore more sound financially than some companies larger in size. This may be true." }, { "docid": "4031906", "title": "", "text": "the market in the particular case at hand.” Spectators’ Commc’n Network Inc. v. Colonial Country Club, 253 F.3d 215, 223 (5th Cir.2001) (citation omitted). Under a rule of reason analysis, the factfinder considers all of the circumstances to determine whether a restrictive practice imposes an unreasonable restraint on competition. Maricopa Cnty. Med. Soc’y, 457 U.S. at 343. The court’s considerations should include the restrictive practice’s “history, nature, and effect” and “[w]hether the businesses involved have market power.” Leegin I, 551 U.S. at 885-86, 127 S.Ct. 2705 (citation and internal quotation marks omitted). Market power has been defined as “the ability to raise prices above those that would be charged in a competitive market.” Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 109 n. 38, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984) (citations omitted). The rule of reason analysis also requires that the plaintiff show that the defendants’ activities injured competition. PSKS, Inc. v. Leegin Creative Leather Prods., 615 F.3d 412, 417 (5th Cir.2010) (“Leegin II ”). The rule of reason is designed to help courts differentiate between “restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.” Leegin I, 551 U.S. at 886, 127 S.Ct. 2705. Regardless of which rule applies, the court’s inquiry should ultimately focus upon “formpng] a judgment about the competitive significance of the restraint.” Bd. of Regents, 468 U.S. at 103, 104 S.Ct. 2948 (citation and internal quotation marks omitted). In Board of Regents, the Supreme Court explained that “it is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and therefore procompetitive.... ” Id. at 117, 104 S.Ct. 2948. The Court distinguished between the restraints at issue in that case — limitations on football telecasts — and “rules defining the conditions of the contest, the eligibility of participants, or the manner in which members of a joint enterprise shall share the responsibilities and the benefits of the total venture.” Id. The latter are presumptively" }, { "docid": "3298863", "title": "", "text": "L.Ed.2d 568 (1977). Continental T.V. explicitly recognized that positive effects on mferbrand competition can justify anticompetitive effects on mira-brand competition. Id. at 51-59, 97 S.Ct. at 2557-62. Although Continental T.V. can reasonably be interpreted as referring only to interbrand and intrabrand components of the same relevant market, Hornsby Oil Co., Inc. v. Champion Spark Plug Co., 714 F.2d 1384, 1394 (5th Cir.1983), there is also some indication that interbrand and intrabrand competition necessarily refer to distinct, yet related, markets. Continental T.V., 433 U.S. at 52 n. 19, 97 S.Ct. at 2558 n. 19 (“The degree of intrabrand competition is wholly independent of the level of interbrand competition.”). Arguably, the market put forward by the NFL—that is the market for NFL football in competition with other forms of entertainment—is closely related to the relevant market found by the jury such that the procom-petitive benefits in one can be compared to the anticompetitive harms in the other. Clearly this question can only be answered upon a much more in-depth inquiry that we need not, nor find it appropriate to, embark upon at this time. Finally, we note that although balancing harms and benefits in different markets may be unwieldy and confusing, such is the case with a number of balancing tests that a court or jury is expected to apply all the time. Indeed, Justice Brandéis’ famous formulation of the rule of reason seems to contemplate the balancing of a wide variety of factors and considerations, many of which are not necessarily comparable or correlative: The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be" }, { "docid": "12294600", "title": "", "text": "judicial shortcut; it represents the considered judgment of courts, after considerable experience with a particular type of restraint, that the rule of reason — the normal mode of analysis — can be dispensed with. As the Supreme Court explained in Northern Pacific Railway Co. v. United States, “there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” A court will not indulge in this conclusive presumption lightly. Invocation of a per se rule always risks sweeping reasonable, pro-competitive activity within a general condemnation, and a court will run this risk only when it can say, on the strength of unambiguous experience, that the challenged action is a “naked restraint[] of trade with no purpose except stifling of competition.” The Supreme Court emphasized the “demanding standards” of Northern Pacific Railway last term in Continental T.V., Inc. v. GTE Sylvania Inc. Reiterating that “[p]er se rules of illegality are appropriate only when they relate to conduct that is manifestly anticompetitive,” the Court overruled Arnold, Schwinn & Co., which had held certain vertical restraints illegal per se. The Continental Court noted that the vertical restrictions in question possessed “redeeming virtues” in their stimulation of inter-brand competition; that the restrictions were “widely used in our free market economy”; and that there existed “substantial scholarly and judicial authority supporting their economic utility.” For these reasons, the Court held that the restraints at issue were to be analyzed not under a per se rule, but under the rule of reason. Smith v. Pro-Football, 593 F.2d 1173, 1181 (D.C.Cir.1978) (footnotes omitted). In Smith v. Pro-Football, the Court of Appeals refused to apply the per se rule in its evaluation of the NFL player draft. In this case, the Court similarly declines to apply the per se rule in evaluating Atlas’s response to the changes accompanying deregulation of the household goods moving industry. Deregulation abruptly re-organized the rules at the foundation" }, { "docid": "7968405", "title": "", "text": "restraints of trade.” Nat’l Collegiate Athletic Ass’n v. Board of Regents of Univ. of Okla., 468 U.S. 85, 98, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984) (hereinafter referred to as “Board of Regents ”). In order to establish their antitrust claim, appellees must prove that appellants (1) participated in an agreement that (2) unreasonably restrained trade in the relevant market. See Law v. Nat’l Collegiate Athletic Ass’n, 134 F.3d 1010, 1016 (10th Cir.1998). The district court found, and the parties do not contest, that appellants have entered into an agreement via their adoption of the Van Ryn Rule. Appellants, however, contest the district court’s finding that the Van Ryn Rule is an unreasonable restraint of trade. “Two analytical approaches are used to determine whether a defendant’s conduct unreasonably restrains trade: the per se rule and the rule of reason.” Id. at 1016 (citing SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 963 (10th Cir.1994)). The per se rule identifies certain practices that “are entirely void of redeeming competitive rationales.” Id. If a court determines that a practice is illegal per se, no examination of the practice’s impact on the market or the procompetitive justifications for the practice is necessary for finding a violation of antitrust law. Id. The rule of reason, however, requires a court to analyze the history of the restraint and the restraint’s effect on competition. Id.; see Smith v. Pro Football, Inc., 593 F.2d 1173, 1183 (D.C.Cir.1978). The rule of reason analysis employs a burden-shifting framework. See California Dental Ass’n v. FTC, 526 U.S. 756, 775 n. 12, 119 S.Ct. 1604, 143 L.Ed.2d 935 (1999). First, the plaintiff must establish that the restraint produces significant anticompetitive effects within the relevant product and geographic markets. See Tanaka v. Univ. of Southern Cal., 252 F.3d 1059, 1063 (9th Cir.2001). “If the plaintiff meets this burden, the defendant must come forward with evidence of the restraint’s procompetitive effects” to establish that the alleged conduct justifies the otherwise anticompetitive injuries. Id.; see also United States v. Brown Univ., 5 F.3d 658, 666-69 (3d Cir.1993). If the defendant is able" }, { "docid": "16258391", "title": "", "text": "Spray-Rite Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984); Podiatrist Ass’n, 332 F.3d at 12. Second, the actors’ agreement must involve either restrictions that are per se illegal or restraints of trade that fail scrutiny under the rule of reason. Monsanto, 465 U.S. at 761, 104 S.Ct. 1464; Podiatrist Ass’n, 332 F.3d at 12. In this instance, the plaintiffs case hinges on the interposition of what is alleged to be an illegal vertical restraint. A vertical restraint is a restraint of trade involving a combination of persons at different levels of the market structure. See M & H Tire Co. v. Hoosier Racing Tire Corp., 733 F.2d 973, 978 (1st Cir.1984). While vertical restraints “may reduce intrabrand competition by limiting the number of sellers of a particular product, competing for a given group of buyers, they also promote interbrand competition by allowing a manufacturer to achieve certain efficiencies in the distribution of its products.” Id. (quoting Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d Cir.1978) (en banc)). Thus, vertical restraints often have both pro-competitive and anti-competitive effects. For this reason, such restraints generally are not deemed per se illegal, but, rather, are tested under a rule of reason analysis. See Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988). Vertical price-fixing agreements, however, are a special subset of vertical restraints. As such, they qualify for different treatment. A vertical price-fixing agreement that establishes a minimum price normally is regarded as a naked restraint of trade and, thus, as illegal per se. See Business Elecs. Corp., 485 U.S. at 724, 108 S.Ct. 1515; Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373, 404-09, 31 S.Ct. 376, 55 L.Ed. 502 (1911); cf. State Oil Co. v. Khan, 522 U.S. 3, 22, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (holding that a maximum vertical price maintenance scheme is not per se illegal). Here, the district court concluded that the plaintiff had not adduced enough evidence to sustain a viable section 1 claim" }, { "docid": "3298862", "title": "", "text": "restraint of trade simply because the practice produces some unrelated benefits to competition in another market. On the other hand, several courts, including this Circuit, have found it appropriate in some cases to balance the anticompetitive effects on competition in one market with certain procompetitive benefits in other markets. See, e.g., NCAA, 468 U.S. at 115-20, 104 S.Ct. at 2967-70; Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 799 (1st Cir.1988); M & H Tire Co. v. Hoosier Racing Tire Corp., 733 F.2d 973, 986 (1st Cir.1984); L.A. Coliseum, 726 F.2d at 1381, 1392, 1397, 1399. Moreover, the district court’s argument that it would be impossible to compare the procompetitive effects of the NFL’s policy in the mferbrand market of competition between the NFL and other forms of entertainment, with the anticompetitive effects of the mirabrand market of competition between NFL teams for the sale of their ownership interests, is arguably refuted by the Supreme Court’s holding in Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Continental T.V. explicitly recognized that positive effects on mferbrand competition can justify anticompetitive effects on mira-brand competition. Id. at 51-59, 97 S.Ct. at 2557-62. Although Continental T.V. can reasonably be interpreted as referring only to interbrand and intrabrand components of the same relevant market, Hornsby Oil Co., Inc. v. Champion Spark Plug Co., 714 F.2d 1384, 1394 (5th Cir.1983), there is also some indication that interbrand and intrabrand competition necessarily refer to distinct, yet related, markets. Continental T.V., 433 U.S. at 52 n. 19, 97 S.Ct. at 2558 n. 19 (“The degree of intrabrand competition is wholly independent of the level of interbrand competition.”). Arguably, the market put forward by the NFL—that is the market for NFL football in competition with other forms of entertainment—is closely related to the relevant market found by the jury such that the procom-petitive benefits in one can be compared to the anticompetitive harms in the other. Clearly this question can only be answered upon a much more in-depth inquiry that we need not, nor find it" }, { "docid": "22971616", "title": "", "text": "important sector of the economy.” United States v. Topco Assocs., Inc., 405 U.S. 596, 610, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). \"If a decision is to be made to sacrifice competition in one portion of the economy for greater competition in another portion this too is a decision that must be made by Congress and not by private forces or by the courts.” Id. at 611, 92 S.Ct. 1126. See also Sullivan v. Nat’l Football League, 34 F.3d 1091, 1112 (1st Cir.1994) (suggesting that it is \"improper to validate a practice that is decidedly in restraint of trade simply because the practice produces some unrelated benefits to competition in another market”). On the other hand, perhaps that language from Topeo is not controlling because it is a dictum or incomplete or obsolete or because the case of such closely related markets as those for transport of natural gas and the natural gas itself might be distinguished. In any event, we need not and do not reach this issue on the permissible bounds of rule of reason inquiry. For we conclude that the anticompetitive harms to the market for NOVA non interruptible transportation were so slight, and the procompetitive benefits of the assignments in that market were so obvious, that we must deem the assignments reasonable even without considering any procompetitive benefits to the separate but related market for natural gas. . Two other businesses, Stone Container and Great Falls Gas Company, also purchased NOVA non-interruptible transportation rights and could have competed with Paladin and MPC. NOVA also sold NOVA transportation rights in competition with Paladin and MPC. Natural gas customers who purchased assignments of NOVA transportation rights also could have sold all or part of their transportation rights for a profit if MPC had attempted to raise prices above competitive levels. . Whether a monopoly could develop in this regulated market is doubtful, so long as NOVA will deal with others. There apparently are few barriers to entering the market for non-interruptible transportation. Paladin essentially was a broker. Paladin could be replaced by another broker, who presumably could enter" }, { "docid": "18649167", "title": "", "text": "manifestly anticompetitive.” It cannot be said that conduct is manifestly anticompetitive where, as here, absolutely no anticompetitive intent or motive existed. 16J Von Kalinowski, supra, at § 76.02, p. 76-11 [“Rule of reason boycotts are not inspired by anticompetitive motives.”] Nor can manifestly anticompetitive conduct be found when the anticompetitive effect is, as here, merely incidental. Neeld v. National Hockey League, supra, 594 F.2d at 1299-1300; 16J Von Kalinowski, supra § 76.04[2], p. 76-41. See also 16J Von Kalinowski at § 76.02[1], p. 76-15: The per se boycott rule is applicable only when the concerted action is specifically directed at third parties. The per se rule is not applicable when conduct only incidentally or indirectly causes a termination in trade relations with a third party. • > Because the law is clear that per se treatment is not appropriate for defendants’ conduct, the most plaintiffs can argue for is application of the “rule of reason.” The “rule of reason” entails basically a weighing process: Under the rule of reason, a restraint must be evaluated to determine whether it is significantly anticompetitive in purpose or effect. In making this evaluation, a court generally will be required to analyze “the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed.” If, on analysis, the restraint is found to have legitimate business purposes whose realization serves to promote competition, the “anticompetitive evils” of the challenged practice must be carefully balanced against its “procompetitive virtues” to ascertain whether the former outweigh the latter. A restraint is unreasonable if it has the “net effect” of substantially impeding competition. [Smith v. Pro Football, Inc., supra, 593 F.2d at 1183] Even were the “rule of reason” to be applied, plaintiffs must fail. On the one hand, plaintiffs have not demonstrated that the anticompetitive effects of the Class VI requirement would be significant at all in terms of the impact upon the relevant market. This is especially so in light of the fact that plaintiffs have full access to the market if they merely use reinsurance certificates. On the other hand," }, { "docid": "18578560", "title": "", "text": "made no findings on the subject. Nor does the concurrence articulate an alternative means of weighing procompetitive and anticompetitive effects. Antitrust adjudication has always proceeded through inferences about market power drawn from market shares. See, e.g., Consultants & Designers, Inc. v. Butler Service Group, Inc., 720 F.2d 1553, 1562-63 (11th Cir.1983) (holding under § 1 that when a defendant has \"a relatively small portion of the ... [relevant] market,” imposition of a restraint cannot be construed \"impermissibly [to] hurt either ... competitors or competition”); Smith v. Pro-Football, Inc., 593 F.2d 1173, 1185-86 (D.C.Cir. 1978) (applying § 1 and finding the \"predictable effect\" of a restraint imposed by 100% of the teams was \"significantly anticompetitive”); United States v. Aluminum Company of America, 148 F.2d 416, 424 (2d Cir.1945) (L. Hand, J.) (a § 2 case holding that \"[ninety] percent[] is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three percent is not\"). WALD, Circuit Judge, concurring: I concur in the result and in much of the reasoning of the panel’s opinion. I write separately, however, to point out several concerns that I have about the panel’s analysis once it establishes that no per se violation existed and the restraint should be looked at under the rule of reason. I believe that the District Court correctly undertook, in the traditional way, to “carefully balance” the “anticompetitive evils of the challenged practice ... against its pro-competitive virtues.” Smith v. Pro Football, Inc., 598 F.2d 1173, 1183 (D.C.Cir. 1978). In fact, at one point the panel concedes that the record made in the District Court demonstrates, even without reliance on inferences drawn from market power, “that the challenged agreement enhances the efficiency of the van lines.” Pan. op. at 221. I am uncomfortable, therefore, with the panel’s suggestions that the District Court’s balancing was unnecessary, and indeed a useless exercise. The panel concludes that no balancing was required here since a defendant lacking significant market power cannot act anticompetitively by reducing output and increasing prices. If, as the panel assumes, the only legitimate purpose" }, { "docid": "3298861", "title": "", "text": "“relevant market provides the basis on which to balance competitive harms and benefits of the restraint at issue” but then considering a wide variety of alleged benefits, and then directing the finder of fact to “balance the gain to interbrand competition against the loss of intrabrand competition”, where the two types of competition operated in different markets). To our knowledge, no authority has squarely addressed this issue. On the one hand, several courts have expressed concern over the use of wide ranging interests to justify an otherwise anticompetitive practice, and others have found particular justifications to be incomparable and not in correlation with the alleged restraint of trade. Smith v. Pro Football, Inc., 593 F.2d 1173, 1186 (D.C.Cir.1978); Brown v. Pro Football Inc., 812 F.Supp. 237, 238 (D.D.C.1992); Chicago Pro. Sports Ltd. Partnership v. Nation al Basketball Ass’n, 754 F.Supp. 1336, 1358 (N.D.Ill.1991). We agree that the ultimate question under the rule of reason is whether a challenged practice promotes or suppresses competition. Thus, it seems improper to validate a practice that is decidedly in restraint of trade simply because the practice produces some unrelated benefits to competition in another market. On the other hand, several courts, including this Circuit, have found it appropriate in some cases to balance the anticompetitive effects on competition in one market with certain procompetitive benefits in other markets. See, e.g., NCAA, 468 U.S. at 115-20, 104 S.Ct. at 2967-70; Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 799 (1st Cir.1988); M & H Tire Co. v. Hoosier Racing Tire Corp., 733 F.2d 973, 986 (1st Cir.1984); L.A. Coliseum, 726 F.2d at 1381, 1392, 1397, 1399. Moreover, the district court’s argument that it would be impossible to compare the procompetitive effects of the NFL’s policy in the mferbrand market of competition between the NFL and other forms of entertainment, with the anticompetitive effects of the mirabrand market of competition between NFL teams for the sale of their ownership interests, is arguably refuted by the Supreme Court’s holding in Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53" }, { "docid": "3298859", "title": "", "text": "a practice that allegedly violates the antitrust laws. Monahan’s Marine, 866 F.2d at 526. The district court instructed the jury on its verdict form to balance the injury to competition in the relevant market with the benefits to competition in that same relevant market. The NFL protested, claiming that all procompetitive effects of its policy, even those in a market different from that in which the alleged restraint operated, should be considered. The NFL’s case was premised on the claim that its policy against public ownership was an important part of the effective functioning of the league as a joint venture. Although it was not readily apparent that this beneficial effect applied to the market for ownership interests in NFL teams, the relevant market found by the jury, the NFL argued that its justification should necessarily be weighed by the jury under the rule of reason analysis. Sullivan responded, and the district court agreed, that a jury cannot be asked to compare what are essentially apples and oranges, and that it is impossible to conduct a balancing of alleged anticompetitive and procompetitive effects of a challenged practice in every definable market. The issue of defining the proper scope of a rule of reason analysis is a deceptive body of water, containing unforeseen currents and turbulence lying just below the surface of an otherwise calm and peaceful ocean. The waters are muddied by the Supreme Court’s decision in NCAA—one of the more extensive examples of the Court performing a rule of reason analysis—where the Court considered the value of certain procompetitive effects that existed outside of the relevant market in which the restraint operated. NCAA 468 U.S. at 115-20, 104 S.Ct. at 2967-70 (considering the NCAA’s interest in protecting live attendance at untelevised games and the NCAA’s “legitimate and important” interest in maintaining competitive balance between amateur athletic teams as a justification for a restraint that operated in a completely different market, the market for the telecasting of collegiate football games). Other courts have demonstrated similar confusion. See, e.g., L.A. Coliseum, 726 F.2d at 1381, 1392, 1397, 1399 (stating that the" } ]

[ { "docid": "8600897", "title": "", "text": "consent of the creditor even in a plenary action unless other conditions prescribed by the statute are met. 11 U.S.C.A. § 46, 52 Stat. 854; May v. Henderson, 268 U.S. 111, 116, 45 S.Ct. 456, 69 L.Ed. 870; Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 433, 44 S.Ct. 396, 68 L.Ed. 770; Louisville Trust Company v. Comingor, 184 U.S. 18, 26, 22 S.Ct. 293, 46 L.Ed. 413. This rule does not apply in reorganization proceedings. Such proceedings are controlled by the amended Act of 1938, 52 Stat. 883. One of the purposes of the statute was the enlargement of the jurisdiction of the court. The restrictions of Section 23, 11 U.S.C.A. § 46 were abrogated unless the proceeding degenerated into ordinary bankruptcy. The statute expanded the former Act to give the court in reorganization proceedings such jurisdiction as a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet debts as they matured. 11 U.S.C.A. § 515, 52 Stat. 884. Under the equity powers in an insolvency proceeding, the appointment of a receiver confers upon the court jurisdiction 'to decide all questions incident to the preservation, collection and distribution of the assets regardless of citizenship or the amount in controversy. Riehle v. Margolies, 279 U.S. 218, 223, 49 S.Ct. 310, 73 L.Ed. 669. Controversies relating to assets of the debtor may be decided in the original suit (Rouse v. Letcher, 156 U.S. 47, 50, 15 S.Ct. 266, 39 L.Ed. 341) or by ancillary proceedings (White v. Ewing, 159 U.S. 36, 15 S.Ct. 1018, 40 L.Ed. 67) and the court may issue all writs necessary for the exercise of its equity powers and to protect from interference all property, actually or constructively in its possession. Continental Illinois Nat. Bank v. Rock Island Railway, 294 U.S. 648, 676, 55 S.Ct. 595, 79 L.Ed. 1110; Julian v. Central Trust Company, 193 U.S. 93, 112, 24 S.Ct. 399, 48 L.Ed. 629. Due to the revolutionary changes in business organization and procedure and the consequent" } ]

[ { "docid": "19040062", "title": "", "text": "above-quoted portion of the Chapter XI automatic stay provision is identical to the language of the Chapter X automatic stay provision. See Bankruptcy Rule 10-601. Chapter X pertains to corporate reorganizations, however, and is subject to certain other provisions, such as 11 U.S.C. § 672 (now repealed with the rest of the 1898 Bankruptcy Act): The right of employees or of persons seeking employment on the property of a debtor under the jurisdiction of the court to join a labor organization of their choice, or to refuse to join or remain members of a company union, shall be free from interference, restraint, or coercion by the court, a debtor, or trustee. It shall be the duty of a debtor or trustee to report to the judge any agreement restricting or interfering with such right, and the judge shall thereupon enter an appropriate order for the termination of such agreement and for notice to the employees that the same is no longer binding upon them. No funds of the estate shall be used by a debtor or a trustee for the purpose of maintaining company unions. The National Labor Relations Act, 29 U.S.C. § 151 et seq., expressly provides that it takes precedence over 11 U.S.C. § 672: Wherever the. application of the provisions of section 672 of Title 11 conflicts with the application of the provisions of this subchapter, this subchapter shall prevail: Provided, That in any situation where the provisions of this subchapter cannot be validly enforced, the provisions of such other Acts shall remain in full force and effect. 29 U.S.C. § 165. As the district court correctly noted, the fact that Congress did not provide in like manner for the National Labor Relations Act to take precedence over Chapter XI proceedings distinguishes cases which hold that the Labor Board matters are not stayed by Chapter X proceedings. It does not necessarily follow, however, as the district judge concluded, that Board proceedings are stayed by Chapter XI proceedings. 29 U.S.C. § 165 may simply be the response of Congress to 11 U.S.C. § 672. Not finding an analogous" }, { "docid": "23157130", "title": "", "text": "19 S.Ct. 407, 43 L.Ed. 669; Ex parte Crow Dog, 109 U.S. 556, 572, 3 S.Ct. 396, 27 L.Ed. 1030; In re Prima Co., supra (98 F.2d 952, 958). We think that the jurisdiction conferred by Section 77 upon the courts of bankruptcy is not to be regarded as general, plenary, nationwide jurisdiction at law and in equity over all questions incident to the collection of the claims of the debtor against third persons, but is to be considered as the traditional jurisdiction of such courts over the property of a bankrupt, wherever located, freed, however, from those limitations which made ancillary proceedings in other districts necessary, and with the powers which Federal equity courts exercise in receivership proceedings, so far as those powers may be necessary or appropriate in order to preserve and safeguard the property in the actual or constructive possession of debtors and in order to carry on their business pending reorganization. Unquestionably, the claim of the trustee of the Missouri Pacific Railroad Company for an accounting and for the enforcement of the equitable lien asserted is an asset of the trust estate and as such is under the jurisdiction and control of the court of bankruptcy. The property upon which the lien is claimed and the persons of those who possess the property or have claims against it are not within the jurisdiction or under the control of the court of bankruptcy. The power of that court to preserve and safeguard the claim of the trustee does not carry with it the power to adjudicate his controversy with adverse and noneonsenting defendants. The court below did not err in entering the orders appealed from, and they are affirmed. Act of March 3, 1933, c. 204, 47 Stat. 1474; Act of Aug. 27, 1935, c. 774, 49 Stat. 911; Act of June 26, 1936, c. 833, 49 Stat. 1969; Tit. 11, U.S.C. § 205, 11 U.S.C.A. § 205. See and compare See. 23 as amended on June 22, 1038, c. 575, § 1, 52 Stat. 854, 11 U.S.C. § 46, 11 U.S.C.A. § 46. “As has already" }, { "docid": "8600898", "title": "", "text": "§ 515, 52 Stat. 884. Under the equity powers in an insolvency proceeding, the appointment of a receiver confers upon the court jurisdiction 'to decide all questions incident to the preservation, collection and distribution of the assets regardless of citizenship or the amount in controversy. Riehle v. Margolies, 279 U.S. 218, 223, 49 S.Ct. 310, 73 L.Ed. 669. Controversies relating to assets of the debtor may be decided in the original suit (Rouse v. Letcher, 156 U.S. 47, 50, 15 S.Ct. 266, 39 L.Ed. 341) or by ancillary proceedings (White v. Ewing, 159 U.S. 36, 15 S.Ct. 1018, 40 L.Ed. 67) and the court may issue all writs necessary for the exercise of its equity powers and to protect from interference all property, actually or constructively in its possession. Continental Illinois Nat. Bank v. Rock Island Railway, 294 U.S. 648, 676, 55 S.Ct. 595, 79 L.Ed. 1110; Julian v. Central Trust Company, 193 U.S. 93, 112, 24 S.Ct. 399, 48 L.Ed. 629. Due to the revolutionary changes in business organization and procedure and the consequent problems of property relationship, bankruptcy courts, under their traditional powers, lagged far behind the swift movement of social and economic conditions and the Congress, in order to make bankruptcy courts instruments for the rehabilitation of financially distressed corporations as distinguished from their liquidation, enacted the statute here in question. The core of the Act is uniting in a bankruptcy court, the traditional law and equity power of courts with authority to administer legal and equitable relief in a single action. The Act places under the jurisdiction of the court all the tangible and intangible assets of the corporation whether or not in its possession so that in a single action, it may adjust conflicting claims. A distinct purpose of the amendment to the Bankruptcy Act was to subject the administration of the corporation, during the period of reorganization or rehabilitation, to the control of tribunals clothed with authority and charged with the duty to proceed to consummation of a plan or reorganization in a summary way. In order that the corporation may be quickly rehabilitated," }, { "docid": "8942928", "title": "", "text": "upon such hearing determine. “5. RFC is herewith directed as and when requested in writing so to do by the Trustees to deliver to them for the purposes and in accordance with this order any and all property of the Debtor which is now or may hereafter be in the possession of RFC. “6. All persons are herewith enjoined from interfering in any manner with the possession by the Trustees of the Debtor’s property or the carrying on by the Trustees of the business of the Debtor in accordance with this order.” On August 7, 1950, an application for a stay of this order pending appeal was denied by order of this court. The chief point raised by appellant is as to the power of the district court to order the turnover to its reorganization trustees of the debtor’s merchandise inventory held in the possession of RFC as pledgee under the factor’s lien agreement. In contrast with the provisions of law relating to straight bankruptcy, Chapter X, like its earlier counterpart § 77B, 48 Stat. 912, 11 U.S.C.A. § 207, contemplates the rehabilitation of financially ailing business corporations under plans of reorganization which may deal with claims of creditors, secured as well as unsecured, and embrace all of the debtor’s property, however encumbered with outstanding security interests. In keeping with this objective, appropriate broad powers are conferred upon the reorganization court. Section 111 provides that for the purposes of ¡Chapter X the reorganization court shall “have exclusive jurisdiction of the debtor and its property, wherever located.” Section 115 provides that, upon approval of a petition for reorganization, the court may, in addition to the powers elsewhere conferred upon it, “exercise all the powers, not inconsistent with the provisions of this chapter, which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature.” Sections 256 and 257 read as follows: “§ 256. A petition may be filed under this chapter notwithstanding the pendency of a" }, { "docid": "5370614", "title": "", "text": "jurisdiction to decide all questions incident to the preservation, collection, and distribution of the assets. It may do this either in the original suit, Rouse v. Letcher, 156 U.S. 47, 49, 50, 15 S.Ct. 266, 39 L.Ed. 341; or by ancillary proceedings, White v. Ewing, 159 U.S. 36, 15 S.Ct. 1018, 40 L.Ed. 67. Compare Kelley v. Gill, 245 U.S. 116, 119, 38 S.Ct. 38, 62 L.Ed. 185. And it may, despite section 265 of the Judicial Code (28 U.S.C.A. § 379), issue under section 262 (28 U.S.C.A. § 377), or otherwise, all writs necessary to protect from interference all property in its possession. Julian v. Central Trust Co., 193 U.S. 93, 112, 24 S.Ct. 399, 48 L.Ed. 629.” The possession of this jurisdiction by the bankruptcy court in a reorganization proceeding is confirmed by the provisions of Ch. X. § 115, 11 U.S.C.A. § 515, provides that upon the approval of the petition in reorganization proceedings, the court shall have in addition to the jurisdiction, powers and duties of a bankrupt court, all the powers which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature; and §§ 187 and 188, 11 U.S.C.A. §§ 587 and 588, permit a trustee or debtor in possession, if authorized by the judge, to exercise such rights and powers as a receiver in equity would have if appointed by a federal court. Heretofore, the dependent jurisdiction of the courts of bankruptcy was restricted by § 23 and by the rule of comity, but now that § 23 is no longer applicable to reorganization proceedings under Ch. X, and the power to interfere in a prior court proceeding has been conferred upon the bankruptcy court by Congress in the exercise of the bankruptcy power, it seems clear that the bankruptcy court under Ch. X has jurisdiction to entertain all suits to which its trustee or the debtor in possession is a party, even though they be instituted against" }, { "docid": "23157115", "title": "", "text": "U.S. 616, 618, 35 S.Ct. 719, 59 L.Ed. 1147; Central Republic Bank & Trust Co. v. Caldwell, 8 Cir., 58 F.2d 721, 730-732; In re Prima Co., 7 Cir., 98 F.2d 952, 957. See, also, In re Tax Service Ass’n of Illinois. (Harris v. Avery Brundage Co.), 305 U.S. 160, 164, 59 S.Ct. 131, 133, 83 L.Ed. 100. Section 77, as originally enacted, provided, under subdivision (a), 11 U.S.C.A. § 205(a) note that the bankruptcy court in which the petition for reorganization was filed and approved “shall, during the pen-dency of the proceedings under this section and for the purposes thereof, have exclusive jurisdiction of the debtor and its property wherever located.” Subdivision (n), 11 U.S.C.A. § 205(n) note, provided: “In proceedings under this section and con sistent with the provisions thereof, the jurisdiction and powers of the court, the duties of the debtor and the rights and-liabilities of creditors, and of all persons with respect to the debtor and his property, shall be the same as if a voluntary petition .for adjudication had been filed and a decree of adjudication had been entered on the day when the debtor’s petition was filed.” On June 7, 1934, Section 77B of the Bankruptcy Act, c. 424, 48 Stat. 912, 11 U.S.C. § 207, 11 U.S.C.A. .§ 207, relating to the reorganization of all corporations except those which were authorized to file petitions under Section 77, became a law. With respect to the jurisdiction of the court of bankruptcy, Section 77B in subdivision (a), 11 U.S.C.A. § 207(a), provided that, after the entry of the order approving the petition for reorganization, the court “shall, during the pendency of the proceedings under this section, have exclusive jurisdiction of the debtor and its property wherever located for the purposes of this section, and shall have and may exercise all the powers, not inconsistent with this section, which a Federal court would have had it appointed a receiver in equity of the property of the debtor by reason of its inability to pay its debts as they mature.” Subdivision (o) of Section 77B and subdivision" }, { "docid": "5270171", "title": "", "text": "the property in the event of no acceptable plan being presented. As to the suggestion that this Court has the power and jurisdiction in a reorganization proceeding of a railroad to convert it into a general bankruptcy proceeding I am firmly of the opinion that there is nothing in the provisions of Section 205 which would justify such conclusion. In the first place under 11 U.S.C.A, § 22 a railroad is not subject to voluntary or involuntary bankruptcy, which seems to nullify the idea of converting the proceeding into one of general bankruptcy. The quotation from Section 205(a), as follows: “If the petition is so approved, the court in which such order is entered shall, during the pendency of the proceedings under this section and for the purposes thereof, have exclusive jurisdiction of the debtor and its property wherever located, and shall have and may exercise in addition to the powers conferred by this section all the powers, not inconsistent with this section, which a Federal court would have had if it had appointed a receiver in equity of the property of the debtor for any purpose”, does no more than permit the Court to exercise equity powers which are not inconsistent with the section, or, in other words, those that are in harmony with the plan of reorganization. This certainly is not sufficiently specific language to authorize the Court to convert the proceeding into one in equity as this would not be in harmony with the general purposes of the reorganization statute itself. Somewhat similar language is found in Section 205(c) (2), which reads: “The trustee or trustees so appointed, upon filing such bond, shall have all the title and shall exercise, subject to the control of the judge and consistently with the provisions of this section, all of the powers of a trustee appointed pursuant to section 72 or any other section of this title, and, to the extent not inconsistent with this section, if authorized by the judge, the powers of a receiver in an equity proceeding, and, subject to the control of the judge and the" }, { "docid": "19040061", "title": "", "text": "a stay of the continuation of the unfair labor proceeding. Chapter XI provides for an arrangement proceeding, that is, any plan of a debtor for the settlement, satisfaction, or extension of time for payment upon any terms of his unsecured debts. Upon the filing of the petition, a receiver was appointed to take charge of the property and to operate the business of the corporate debtor. On December 21, 1978, the Board timely filed a notice of appeal to the district court. On May 17, Í979, the district court affirmed the order of the bankruptcy court, supporting its judgment with a memorandum decision and holding that Bankruptcy Rule 11-44 effectively prevented the Board from pursuing the unfair labor practice proceeding. The Board then appealed to this court. II Bankruptcy Rule 11-44 provides in part: A petition filed under . . . [Chapter XI] shall operate as a stay of the commencement or the continuation, of any court or other proceeding against the debtor Bankruptcy Rule ll-44(a) [emphasis added]. The district judge pointed out that the above-quoted portion of the Chapter XI automatic stay provision is identical to the language of the Chapter X automatic stay provision. See Bankruptcy Rule 10-601. Chapter X pertains to corporate reorganizations, however, and is subject to certain other provisions, such as 11 U.S.C. § 672 (now repealed with the rest of the 1898 Bankruptcy Act): The right of employees or of persons seeking employment on the property of a debtor under the jurisdiction of the court to join a labor organization of their choice, or to refuse to join or remain members of a company union, shall be free from interference, restraint, or coercion by the court, a debtor, or trustee. It shall be the duty of a debtor or trustee to report to the judge any agreement restricting or interfering with such right, and the judge shall thereupon enter an appropriate order for the termination of such agreement and for notice to the employees that the same is no longer binding upon them. No funds of the estate shall be used by a debtor" }, { "docid": "22873932", "title": "", "text": "unable to pay its debts as they matured. The District Court dismissed the petition on the ground that submission to the receivership in the suit for foreclosure was not an act of bankruptcy and did not relieve the creditors from showing in their petition that such an act had been committed. 11 F. Supp. 404. The Circuit Court of Appeals for the Second Circuit affirmed, 78 F. (2d) 678, declining to follow a decision in the Seventh-Circuit which upheld a different conclusion. In re Granada Hotel Corp., 78 F. (2d) 409; affirming 9. F. Supp. 909. Because of this conflict and because of the importance of removing doubt as to the meaning of the statute a writ of certiorari was granted by this court. Section 77B of the Bankruptcy Act, which took effect as law on June 7, 1934 (Act of June 7, 1934, 48 Stat. 911, 912; 11 U. S. G., § 207) provides for two classes of proceedings, voluntary and involuntary. Any corporation, with exceptions not now important, may file a petition stating that it is insolvent or presently unable to meet maturing obligations, and that it desires to effect a plan of reorganization. If the petition is approved, the court assuming jurisdiction shall have and may exercise all the powers, unless specially withdrawn, “which a Federal court would have had it appointed a receiver in equity of the property of the debtor by reason of its inability to pay its debts as they mature.” § 77B (a). But juris diction is not confined to • proceedings initiated by the debtor. The statute makes provision by the same section for the reorganization of a corporate debtor at the instance of the creditors. Three or more creditors who have-provable claims against a corporation aggregating $1,000 or more in excess of the value of securities may file “a petition stating that such corporation is insolvent or unable to meet its debts as they mature and, if a prior proceeding in bankruptcy or equity receivership is not pending, that it has committed an act of bankruptcy within four months,” and that" }, { "docid": "1571555", "title": "", "text": "March 10, 1941. See also Statement of Assets and Liabilities to February 28, 1941, filed March 28, 1941. (a) BY: William Harris, Esq. Edgecomb Steel Corp........... $1,609.60 International Corp............. 2,586.80 Grammer, Dempsey & Hudson 813.53 Joseph T. Ryerson & Son..... 174.68 John B. Astell................. 2,134.04 $7,320.55 (b) BY: Messrs. Jerome Alper & Alper Alan\" Wood Steel Co..........$ 9,911.39 Harrisburg Steel Corp........ 234.00 Ingersoll Steel & Discount Div. Borg-Watson Corp...... 1,961.26 $12,106.65 Section 77 of the Bankruptcy Act, 11 U.S.C.A. § 205, pertaining to the reorganization of Railroads. This was the first time Congress brought reorganization procedure within the scope of the Bankruptcy power. This paragraph and the preceding paragraph with footnote #14 taken from The Chandler Act — Its Effect Upon the Law of Bankruptcy, Vincent L. Leibell, Jr., Fordham Law Review, Vol. IX, page 380 at 393. Insolvency in the Bankruptcy sense: A corporation is insolvent “whenever the aggregate of [its] property * * * shall not at a fair valuation be sufficient in amount to pay [its] debts.” Bankruptcy Act of 1938, § 1(19), 11 U.S.C.A. § 1(19). Insolvency in the equity sense. Bankruptcy Act of 1938, 11 U.S.C.A. § 501 et seq. Section 130(1), Bankruptcy Act of 1938, 11 U.S.C.A. § 530(1). Ninth Paragraph of petition filed May 6, 1940. See: “Upon the approval of a petition, the court shall have and may, ‘ in addition to the jurisdiction, powers, and duties hereinabove and elsewhere in this chapter conferred and imposed upon it, exercise all the powers, not inconsistent with the provisions of this chapter, which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature. July 1, 1898, c. 541, § 115, as added June 22, 1938, e. 575, § 1, 52 Stat. 884.” 11 U.S.C.A. § 515. The plan as filed, provides for a new corporation to be formed. The authorized capital stock to consist of 4,000 shares of 7% cumulative preferred of the par value of $100 per" }, { "docid": "8942929", "title": "", "text": "912, 11 U.S.C.A. § 207, contemplates the rehabilitation of financially ailing business corporations under plans of reorganization which may deal with claims of creditors, secured as well as unsecured, and embrace all of the debtor’s property, however encumbered with outstanding security interests. In keeping with this objective, appropriate broad powers are conferred upon the reorganization court. Section 111 provides that for the purposes of ¡Chapter X the reorganization court shall “have exclusive jurisdiction of the debtor and its property, wherever located.” Section 115 provides that, upon approval of a petition for reorganization, the court may, in addition to the powers elsewhere conferred upon it, “exercise all the powers, not inconsistent with the provisions of this chapter, which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature.” Sections 256 and 257 read as follows: “§ 256. A petition may be filed under this chapter notwithstanding the pendency of a prior mortgage foreclosure, equity, or other proceeding in a court of the United States or of any State in which a receiver or trustee of all or any part of the proper ty of a debtor has been appointed or for whose appointment an application has been made. “§ 257. The trustee appointed under this chapter, upon his qualification, or if a debtor is continued in possession, the debt- or, shall become vested with the rights, if any, of such prior receiver or trustee in such property and with the right to the immediate possession thereof. The trustee or debtor in possession shall also have the right to immediate possession of all property of the debtor in the possession of a trustee under a trust deed or a mortgagee under a mortgage.” Section 256 and the first sentence of § 257 obviate for purposes of Chapter X the restrictive interpretation of old § 77B in Duparquet Huot & Moneuse Co. v. Evans, 1936, 297 U.S. 216, 56 S.Ct. 412, 80 L.Ed. 591. See In re" }, { "docid": "1845866", "title": "", "text": "had the power to enjoin the state court proceedings there can be no serious doubt. Sec. 2 sub. a(15), 11 U.S.C.A. § 11, sub. a(15) of the Act itself provides: “The courts of the United States hereinbefore defined as courts of bankruptcy * * * are hereby invested * * * with such jurisdiction at law and in equity £q_ “Make such orders, issue such process, and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this title: Provided, however, that an injunction to restrain a court may be issued by the judge only;”. Also in Chapter X of the Act, 11 U.S. C.A. § 515, there is the provision: “Upon the approval of a petition, the court shall have and may, in addition to the jurisdiction, powers, and duties hereinabove and elsewhere in this chapter conferred and imposed upon it, exercise all the powers, not inconsistent with the provisions of this chapter, which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature.” And see Continental Illinois National Bank & Trust Co. v. Chicago, Rock Island and Pacific R. Co., 294 U.S. 648, 676, 684-685, 55 S.Ct. 595, 79 L.Ed. 1110; In re Standard Gas & Electric Co., 3 Cir., 139 F.2d 149, 152. Appellant contends, however, that the controversy presented in the state court is not ancillary to the reorganization proceedings. But Section 2, sub. a (7) of the Act, the Austrian case, and the circumstances involved in the state court dispute refute this contention. Section 2, sub. a(7) of the Act, 11 U.S. C.A. § 11, sub. a(7) reads: “The courts of the United States hereinbefore defined as courts of bankruptcy * * * are hereby invested * * * with such jurisdiction at law and in equity * * * to— “Cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in" }, { "docid": "23157116", "title": "", "text": "filed and a decree of adjudication had been entered on the day when the debtor’s petition was filed.” On June 7, 1934, Section 77B of the Bankruptcy Act, c. 424, 48 Stat. 912, 11 U.S.C. § 207, 11 U.S.C.A. .§ 207, relating to the reorganization of all corporations except those which were authorized to file petitions under Section 77, became a law. With respect to the jurisdiction of the court of bankruptcy, Section 77B in subdivision (a), 11 U.S.C.A. § 207(a), provided that, after the entry of the order approving the petition for reorganization, the court “shall, during the pendency of the proceedings under this section, have exclusive jurisdiction of the debtor and its property wherever located for the purposes of this section, and shall have and may exercise all the powers, not inconsistent with this section, which a Federal court would have had it appointed a receiver in equity of the property of the debtor by reason of its inability to pay its debts as they mature.” Subdivision (o) of Section 77B and subdivision (n) of Section 77 were identical. It is to be noted, then, that at the-time Section 77B was enacted, the jurisdiction granted to the court of bankruptcy under both Section 77. and Section 77B was the same, except that under Section 77B the court of bankruptcy was, granted, in addition to its usual powers in bankruptcy, the powers, not inconsistent with the section, which a Federal court would have, had it appointed a receiver in equity. On January 23, 1935, the Chairman of the Interstate Commerce Commission transmitted to Congress the “Report of the Federal Coordinator of Transportation, 1934”, which recommended a revision of Section 77. In that report,- under the heading “Bankruptcy Act Revision” (page 100 et seq.) appears the following pertinent language: “The pendency of a large numbe.r of railroad receiverships or bankruptcies, and the probability of others in the future, make it desirable that precautions be taken to improve as far as possible the administration of the railroad insolvency laws. Property interests of great magnitude are at stake; the nature of the" }, { "docid": "23548999", "title": "", "text": "in Section 77B of this Act [section 207 of this chapter]. “[Section 77B] § 207. (a) * '* * Upon the filing of such a petition or answer the judge shall enter an order either approving it * * * or dismissing it. If the petition or answer is so approved, an order of adjudication in bankruptcy shall not be entered and the court in which such order approving the petition or answer is entered shall, during the pendency of the proceedings under this section, have exclusive jurisdiction of the debtor and its property wherever located for the purposes of this section, and shall have and may exercise all the powers, not inconsistent with this section, which a Federal court would have had it appointed a receiver in equity of the property of the debtor by reason of its inability to pay its debts as they mature.” Subsequent language of this section provides that a corporation owned or controlled, through an intervening medium, by a petitioning debtor may file a petition for reorganization in connection with or as a part of the plan of reorganization of the petitioning debtor and “thereupon such court, if it approves such petition, shall have the same jurisdiction with respect to such corporation, its property, .and its creditors and stockholders as the court has with respect to such other debtor.” (Our italics). 11 U.S.C.A. §§ 208, 207. 1933 Profit Loss Barrels April ...............$366,168.85 43,662 May ................ 207,645.14 32,963 June ............... 30,868.98 34,957 July ................ 71,138.90 26,191 August ............. 2,896.40 19,460 September .......... 1,277.18 15,875 October ............ 128,558.31 9,235 November .......... 68,643.05 6,125 December .......... 75,064.28 9,277 '\"1934' January ........... 37,603.11 6,872 February .......... 37,580.69 5,905 March .............. 39,181.22 8,711 April ............... 26,312.04 9,894 May ................ 544.79 15,177 June ............... 168,073.66 19,717 July ................ 25,031.08 20,212 TMs was first suggested by the First National Bank, which in its prior dealings with the debtor had always required such- guaranties. Memorandum of Agreement. This agreement, entered into this 18th day of June, 1934, by and between the Prima Company and Garnett C. Skinner whereby the Prima Company agrees" }, { "docid": "5370615", "title": "", "text": "powers which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature; and §§ 187 and 188, 11 U.S.C.A. §§ 587 and 588, permit a trustee or debtor in possession, if authorized by the judge, to exercise such rights and powers as a receiver in equity would have if appointed by a federal court. Heretofore, the dependent jurisdiction of the courts of bankruptcy was restricted by § 23 and by the rule of comity, but now that § 23 is no longer applicable to reorganization proceedings under Ch. X, and the power to interfere in a prior court proceeding has been conferred upon the bankruptcy court by Congress in the exercise of the bankruptcy power, it seems clear that the bankruptcy court under Ch. X has jurisdiction to entertain all suits to which its trustee or the debtor in possession is a party, even though they be instituted against adverse claimants. See Finletter, The Law of Bankruptcy Reorganization, 1939 Ed. p. 181. It is significant that in Kelley v. Gill, 245 U.S. 116, 38 S.Ct. 38, 62 L.Ed. 185, the jurisdiction of the bankruptcy court to entertain a dependent suit in equity to enforce the collection of unpaid stock subscriptions due a bankrupt corporation was denied because of the applicable provisions of § 23. It does not follow, however, that the jurisdiction of the bankruptcy court over suits against an adverse claimant may be summarily exercised. The statute does not so provide; and under the well established procedural rule of the ordinary bankruptcy courts, as we have seen, suits by a trustee to recover property from an adverse claimant in possession must take the form of a plenary action. This is especially true when the title to property is in dispute. The rule was applied in Taubel, etc., Co. v. Fox, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770, where the court discussed the bearing of §§ 67, sub. e, 60, sub. b" }, { "docid": "22873933", "title": "", "text": "that it is insolvent or presently unable to meet maturing obligations, and that it desires to effect a plan of reorganization. If the petition is approved, the court assuming jurisdiction shall have and may exercise all the powers, unless specially withdrawn, “which a Federal court would have had it appointed a receiver in equity of the property of the debtor by reason of its inability to pay its debts as they mature.” § 77B (a). But juris diction is not confined to • proceedings initiated by the debtor. The statute makes provision by the same section for the reorganization of a corporate debtor at the instance of the creditors. Three or more creditors who have-provable claims against a corporation aggregating $1,000 or more in excess of the value of securities may file “a petition stating that such corporation is insolvent or unable to meet its debts as they mature and, if a prior proceeding in bankruptcy or equity receivership is not pending, that it has committed an act of bankruptcy within four months,” and that such creditors propose that it shall effect a reorganization. § 77B (a). A later subdivision, § 77B (i); 11U. S. C., § 207 (i), rounds out the statutory scheme. “If a receiver or trustee of all or any part of the property of a corporation, has béen appointed by a Federal, State, or Territorial court, ... a petition . . . may be filed under this section at any time thereafter by the corporation, or its creditors as provided in subdivision (a) of this section,” and upon the approval of the petition by a court of appropriate jurisdiction, “the trustee or trustees appointed under this section, or the debtor if no trustee is appointed, shall be entitled forthwith to take possession” of the property, displacing in so doing the possession of the trustee or receiver theretofore appointed. To fix the meaning of these provisions there is need to keep in view the background of their history. .There is need to keep in view also the structure of the statute, and the relation, physical and logical," }, { "docid": "10442422", "title": "", "text": "Section 236(1) of the Bankruptcy Act, 11 U.S.C.A. § 636(1) provides as follows: “If no plan is proposed within the time fixed or extended by the judge, or if no plan proposed is approved by the judge and no further time is granted for the proposal of a plan, or if no plan approved by the judge is accepted within the time fixed or extended by the judge, or if confirmation of the plan is refused, or if a confirmed plan is not consummated, the judge shall— “(1) where the petition was filed under section 527 of this title, enter an order dismissing the proceeding under this chapter and directing that the bankruptcy be proceeded with pursuant to the provisions of this title.” Section 116 of the Bankruptcy Act, 11 U.S.C.A. § 516 provides: “Upon the approval of a petition, the judge may, in addition to the jurisdiction, powers, and duties hereinabove and elsewhere in this chapter conferred and imposed upon him and the court—* * * “(3) authorize a receiver or a trustee or a debtor in possession, upon such notice as the judge may prescribe and upon cause shown, to lease or sell any property of the debtor, whether real or personal, and upon such terms and conditions as the judge may approve.” The appellant lays great stress upon the fact that here the sale was of all income-producing property of the debtor and hence was likely to prevent the adoption of any plan of reorganization and to defeat the very purpose of the reorganization proceeding. But the disposition of the property could not be longer delayed without peril to all interests. The properties were wasting assets and Section 116(3) of the Chandler Act authorizes the sale of “any” of them. Not only was the sale authorized by Section 116(3) of the Act, but also by Section 115, 11 U.S.C.A. § 515, under which the court is given the powers it would have if it had appointed a receiver in equity, one of which is to sell perishable property. In re Rosenbaum Grain Corporation, 7 Cir., 83 F.2d" }, { "docid": "11944346", "title": "", "text": "MANTON, Circuit Judge. A receiver in equity was appointed for the debtor, and he is now in possession of its property. The petition filed alleges that the appellants “propose * * * a reorganization” of the debtor. The petitioners are the holders of $14,000 principal amount of first mortgage twenty-year 7% per cent, sinking fund gold bonds of the debtor out of a total of $5,500,900 principal amount of such bonds outstanding. They allege in their petition that the debtor is unable to meet its debts as they áre maturing and have already matured; that a receiver in equity was appointed; that “your petitioners propose that said debtor shall effect a reorganization pursuant to section 77B of an Act entitled : ‘An Act to Establish a Uniform System of Bankruptcy throughout the United States,’ approved July 1, 1898, and Acts amendatory thereof and supplemental thereto (hereafter referred to as the Bankruptcy Act).” They allege that the debtor has not filed a petition or answer under section 77B of the Bankruptcy Act (11 USCA § 207), and pray relief that an order be entered approving this petition as properly filed under section 77B, and that trustees of the estate of the debtor be appointed. The statute (section 77B, 48 Stat. 911, 912, c. 424 [11 USCA § 207]) authorizes any corporation, which may become a bankrupt under section 4 of the act, to file an original petition, “stating the requisite jurisdictional facts under this section; the nature of the business of the debtor; in brief description, the assets, liabilities, capital stock, and financial condition of the debtor; if a prior proceeding is pending, the name of the court in which it is pending and the nature of such proceeding; facts showing the need for relief under this section; and that the corporation is insolvent or unable to meet its debts as they mature and that it desires to effect a plan of reorganization. * * * Three or more creditors who have provable claims against any corporation which amount in the aggregate, in excess of the value of securities held by" }, { "docid": "10583178", "title": "", "text": "quoted, was intended to remove restrictions of Section 77B, 11 U.S.C.A. § 207, which had been held only to allow creditors holding personal obligations of the debtor, and not merely claims against its property, to file petitions for reorganization. The debtor’s contention that removal of the former restrictions was unconstitutional because it interfered with the exercise of the debtor’s corporate franchises is clearly without substance. It docs so, if at all, only temporarily and does no more than would the appointment of a chancery receiver which has long been a valid exercise of judicial power. Whatever reorganization may occur under the present proceedings would leave the corporate charter intact and permit the debtor to conduct any business that the charter may authorize, irrespective of whether or not the mortgage lien against its property may be modified. The bankruptcy powers exercised in Congressional legislation have gradually been expanded from mere liquidation of the property of an insolvent debtor to rehabilitation through both voluntary and involuntary proceedings. Methods of rehabilitation have been extended from the old-fashioned composition applicable only to unsecured claims to an adjustment of the liens of secured claimants. The constitutionality of these later devices of rehabilitation in substitution for the old equity receivership was sustained by the Supreme Court in Continental Illinois National Bank & Trust Co. v. Chicago R. I. & P. Ry. Co., 294 U.S. 648, 671, 55 S.Ct. 595, 79 L.Ed. 1110. See, also, In re Central Funding Corporation, 2 Cir., 75 F.2d 256, 261. It is true that those decisions did not deal with claims which while secured were not also founded on personal obligations of the debt- or, but at least when the debtor is insolvent we can see nothing to prevent Congress from extending the application of the bankruptcy power in such a way as to protect the process of dealing with liens against its property in a reorganization proceeding like the one before us. The prime object in the case of either form of proceeding is to afford a convenient mode of adjusting the liens upon the property of a debtor under" }, { "docid": "11163657", "title": "", "text": "said, a matter for the Court to determine. There is no doubt that the Court has jurisdiction to dismiss the proceedings if it finds that the NOTM can pay or otherwise satisfy its matured obligations and be able to meet its debts as they mature. The Court’s jurisdiction to dismiss the reorganization proceedings is not predicated on any specific provision of Section 77, -but upon the inherent powers of the Court, as a Court possessing full equity powers to dismiss the proceedings when their purpose has been achieved. The Debtor’s petition for reorganization in this case alleged that it was unable to meet its debts as they matured and desired to effect a plan of reorganization. This allegation was predicated on Section 77, sub. a, which provides: “Any railroad corporation may file a petition stating that it is insolvent or unable to meet its debts as they mature and that it desires -to effect a plan of reorganization”. It is thus clear that the basic fact which gave rise to the Court’s jurisdiction in the first instance was the inability of the Debtor to meet its debts as they matured. It follows, therefore, that if, during the course of the reorganization proceedings the Debtor becomes able to meet its debts as they mature, by refunding or otherwise, the proceedings should be dismissed. Section 2, sub. a, of the Bankruptcy Act, 11 U.S.C.A. § 11, sub. a, provides that District Courts as courts of bankruptcy shall be vested “with such jurisdiction at law -and in equity as will enable them to exercise original jurisdiction in proceedings under this Act”. Section 2, sub. b, provides, in part, that “Nothing in this section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumerated”. Section 77, sub. a, of the Bankruptcy Act provides that the Court “ * * * shall have and may exercise in addition to the powers conferred by this section all the powers, not inconsistent with this section, which a Federal court would have had if it" } ]

[ { "docid": "13820793", "title": "", "text": "0 Total wage damages $29,332 Loss of professional reputation $25,000 Mental Anguish 10,000 Moving expenses 600 Total other damages $35,600 Total damages $64,932 A. Loss of Wages On appeal the Bank presents the same argument concerning the award of lost wages that it presented to the district court in support of its motion for a remittitur. We believe that that portion of Chief District Judge Wendell Miles’s opinion which deals with the argument clearly demonstrates that the jury’s award is not excessive. We append the relevant portion of Chief Judge Miles’s opinion to our opinion. B. Mental Anguish The Bank raises several issues with respect to the award of damages for mental anguish. The Bank first argues that because the jury found that the discharge was in violation of Wiskotoni’s employment contract, Wiskotoni’s recovery of damages should be limited to the economic value of the contract. The Bank relies on Isagholian v. Carnegie Institute of Detroit, Inc., 51 Mich.App. 220, 214 N.W.2d 864 (1974), for the proposition that damages for mental anguish are not recoverable where the contract breached is commercial in nature as is the case where an employment contract is breached. The Bank’s reliance on Isagholian is misplaced. While it is true that damages for a breach of a commercial contract are generally limited to the monetary value of the contract, the award of damages is not so limited where the same state of facts that establish a breach of contract also establish a cause of action in tort. Kewin v. Massachusetts Mutual Life Insurance Co., 409 Mich. 401, 415 & n. 1, 295 N.W.2d 50, 53 & n. 1 (1980). Because wrongful discharge in violation of public policy states an action in tort rather than contract, damages are not limited by contract principles. See, e.g., Harless v. First National Bank, 289 S.E.2d 692, 699-700 (W.Va.1982); Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1064 (5th Cir.1981). The Bank next argues that even under tort principles damages for mental anguish are not recoverable because they are exemplary damages that are recoverable only for an “injury maliciously" } ]

[ { "docid": "18054362", "title": "", "text": "(1975); Cagle v. Burns and Roe, Inc., 106 Wash.2d 911, 726 P.2d 434 (1986); Harless v. First Nat’l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982). This court, for example, in Smith v. Atlas Off-Shore Boat Service, Inc., recognized a maritime-law wrongful-discharge claim where an employee was terminated in retaliation for filing a personal-injury case against the employer, and we held that the employee was “entitled to recover compensatory damages for mental anguish that he may suffer as a result of the wrongful discharge.” 653 F.2d at 1064. This common-law backdrop would tend to suggest that, when Congress created- SOX’s statutory antiretaliation right and specified that recovery thereunder includes “all relief necessary to make the employee whole” (emphasis added), it intended to encompass within the statute’s broad ambit such damages as are often available at common law for analogous claims. In light of SOX’s plain text and the foregoing considerations, we find that the statute affords noneconomic compensatory damages, including emotional distress and reputational harm. SOX affords “all relief necessary to make the employee whole” (emphasis added), and we think Congress meant what it said. “All means all.” See Kennedy v. Lynd, 306 F.2d 222, 230 (5th Cir.1962). If an employee suffers emotional distress from actionable retaliation, then emotional damages are “necessary to make the employee whole.” See Hammond, 218 F.3d at 892-93 (“Providing compensation for [emotional distress] comports with the statute’s requirement that a whistleblowing employee ‘be entitled to all relief necessary to make the employee whole.’ ”); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1199 (11th Cir.2007) (“[E]motional damages, like other forms of compensatory damages, are designed to make the plaintiff whole.”); Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 547 (6th Cir.1999) (“This court has recognized that in making a plaintiff whole it often will be appropriate to award ... damages for emotional harm.”); accord Tembenis v. Sec’y of Health & Human Servs., 733 F.3d 1190, 1193 (Fed.Cir.2013). The same is true for reputational harm and damages for such. See Dobbs-Weinstein, 185 F.3d at 547; Hanna v. WCI Communities, Inc., 348 F.Supp.2d 1332, 1334" }, { "docid": "3400406", "title": "", "text": "jury to consider the implied contract issue, and plaintiffs cannot recover damages for breach of contract. Nor can they recover in tort. It may be true that Hilton’s stated reasons for firing the employees do not square completely with the facts. But Hilton was not required to give any reason at all for its action. “[A] bad faith discharge tort cannot be committed against an at-will employee....” D’Angelo, 819 P.2d at 212. Because plaintiffs were employed at will, Hilton was entitled to discharge them at will. They cannot maintain a cause of action under Nevada law for breach of contract or bad faith discharge. Sands Regent, 777 P.2d at 899 (“[B]oth breach of contract and bad faith discharge presuppose that the parties had an employment agreement.”). The district court erred in allowing the jury to consider the existence of an implied contract, when no such contract could have existed as a matter of Nevada law. Cf. Smoot, 942 F.2d at 1411-12 (district court faced with similar facts erred in not granting a directed verdict or JNOV under Washington law). The damages awarded under these theories must be vacated. II. Intentional Infliction of Emotional Distress Because plaintiffs were at-will employees, Hilton was entitled to terminate them without cause. Hence, their dis charge did not amount to the type of willful misconduct that could serve as a predicate for the tort of intentional infliction of emotional distress. See Alford v. Harolds Club, 99 Nev. 670, 669 P.2d 721, 724 (1983) (per curiam) (upholding dismissal of plaintiffs’ claims for intentional infliction of emotional distress arising from their terminations for refusal to comply with a tip pooling policy, because the tip pooling policy was legal and hence their terminations could not be wrongful). Even had plaintiffs managed to establish that the terminations were wrongful, Nevada does not recognize a cause of action for intentional infliction of emotional distress in the employment termination context. Plaintiffs point to MGM Grand Hotel-Reno, Inc. v. Insley, 102 Nev. 513, 728 P.2d 821 (1986), and Alford, 669 P.2d 721, but neither case supports this position. Alford, as already discussed," }, { "docid": "6250785", "title": "", "text": "399 F.3d 52, 64 (1st Cir.2005). The jury could easily have rejected Stiefel’s argument given Muñiz’s cash flow worries. Often we look to comparable cases to determine if a damages award is totally out of line. There may not be any cases that are strict comparators for the pain and suffering damages awarded here, in an ordinary contract action. After all, in most jurisdictions in this country, emotional distress damages are not available as an ordinary contract remedy. See, e.g., B & M Homes, Inc. v. Hogan, 376 So.2d 667, 671 (Ala.1979); Sawyer v. Bank of Am., 83 Cal.App.3d 135, 145 Cal.Rptr. 623, 625 (1978); McClean v. Univ. Club, 327 Mass. 68, 97 N.E.2d 174 (1951); Boyce v. Greeley Square Hotel Co., 228 N.Y. 106, 126 N.E. 647, 649 (1920). We look to an imperfectly analogous area: employment discrimination law. The analogy is imperfect because Congress and various state legislatures have, for policy reasons, allowed pain and suffering damages in cases brought under Title VII, the Age Discrimination in Employment Act, and comparable state laws. Still, the distinction between ordinary employment contract cases and employment cases enforcing important federal or state policies goes more to whether emotional distress damages should be allowable at all, rather than to whether a particular award is excessive. Under this analogous case law, the pain and suffering damages awarded to Muñiz and his wife are not excessive. More generous awards have been upheld based on testimony similar to that here. See McDonough, 452 F.3d at 22 (affirming jury award of $300,000, the majority of which was for emotional distress, in Title VII unlawful retaliation case); Koster v. Trans World Airlines, Inc., 181 F.3d 24, 36 (1st Cir.1999) (reducing emotional distress award in state law age discrimination case from $716,000 to $250,000); see also Rodriguez-Torres, 399 F.3d at 64 (affirming, on plain error review, $250,000 award in employment discrimination case). III. That part of the judgment for the plaintiffs for basic contract damages in the sum of $613,080 is affirmed, and the judgment should be amended and entered to reflect that amount, with interest. On remand," }, { "docid": "689697", "title": "", "text": "N.H. 130, 316 A.2d 549, 551 (1974) (termination motivated by bad faith is not in the best interest of society and constitutes a breach of contract). See also McKinney v. National Dairy Council, 491 F.Supp. 1108 (D.Mass.1980); McNulty v. Borden, 474 F.Supp. 1111, 1119 (E.D.Pa.1979). Another theory of liability holds employers liable for intentional infliction of emotional distress when the discharge has been extreme and outrageous. See Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976) (restaurant manager held liable for firing waitresses in alphabetical order to force them to disclose who had been stealing from the restaurant). See also Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 468 P.2d 216, 86 Cal.Rptr. 88 (1970); but see M. B. M. Co. v. Counce, 596 S.W.2d 681 (Ark.1980) (no cause of action for intentional infliction of mental distress because plaintiff was an employee at will). See generally, Annot., 86 A.L.R.3d 454 (1978 & Supp. 1981). Most courts have modified the rule under a “public policy” exception to the employment at will rule. This exception allows the discharged employee to recover where the discharge violates some important public policy. See, e.g., Petermann v. Teamsters Local 396, 174 Cal.App.2d 184, 344 P.2d 25 (1959) (employee discharged for refusing to commit perjury entitled to recover under breach of contract); Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057 (5th Cir. 1981) (seaman discharged for filing Jones Act claim permitted action under maritime law); Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 610 P.2d 1330, 164 Cal.Rptr. 839 (1980) (employee discharged for refusal to participate in illegal price-fixing scheme allowed to recover in tort); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) (at will employee discharged for filing workmen’s compensation claim may bring tort action against former employer); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (employee dismissed for serving on jury duty entitled to recover in tort). There are presently no reported New York State appellate court decisions in this emerging" }, { "docid": "5599627", "title": "", "text": "Ellenwood’s contract and estoppel claims, the district court improperly created an exception to the well-established rule that maritime employment is terminable at will by either party in the absence of a contract setting a specific term. According to Exxon, maritime law. has “clung tenaciously” to the at-will principle, and only one narrow exception previously has been carved from it. In Atlas Off-Shore Boat Serv., 658 F.2d at 1062-63, the court permitted a claim for wrongful discharge when a seaman was fired for filing a personal injury claim that he was entitled to file by statute. No additional exceptions should be allowed to erode the strength of the at-will doctrine, Exxon argues, since the seaman’s rights as an employee already are well protected by federal statute. See generally, e.g., 46 U.S.C. §§ 10302, 10303, 10313, 10502, 10504, 10505, 10506 (prescribing procedures governing meals, hours and wages for seamen). Exxon misperceives the district court’s ruling. The court did not devise a new “wrongful discharge” cause of action on behalf of Ellenwood. It simply recognized the obvious fact that—notwithstanding the general rule that a seaman’s employment is at-will—a maritime employer may make a contractual agreement with, or an enforceable promise to, its employees. In this case, Ellenwood claimed that Exxon had promised that his job security and future opportunities would not be jeopardized if he sought treatment for alcoholism. The jury found that the requirements for establishing a binding obligation were met. We see no reason why maritime law would invalidate this self-imposed obligation. Accordingly, we affirm the district court’s judgment on the breach of contract and estoppel claims. See infra Section V. ' III. Negligent Infliction of Emotional Distress The jury awarded Theodore Ellenwood $50,000 and his wife $25,000 on their claims for negligent infliction of emotional distress. The district court, 795 F.Supp. 31, overturned these verdicts on the ground that maritime plaintiffs may not recover for negligently caused emotional damages unless they demonstrate accompanying physical injury or impact. The Ellen-woods presented no evidence of physical harm. In granting judgment for defendants, the district court noted that the Supreme Court in Atchison," }, { "docid": "7215844", "title": "", "text": "on a breach of contract theory. Most recently, in a case involving facts strikingly similar to those presented here, the California Supreme Court held that the employee also has a cause of action based upon the tort of wrongful discharge, subjecting the employer to compensatory damages, damages for emotional distress, and punitive damages. In Tameny v. Atlantic Richfield Company, 27 Cal.3d 167, 610 P.2d 1330, 164 Cal.Rptr. 839 (1980), the California Supreme Court allowed a wrongful discharge tort action to be brought by an employee against his employer where the allegation was that, while a retail sales representative, the employee was discharged for refusing to participate in an illegal scheme to fix the retail gasoline prices of defendant’s franchisees. Ostrofe therefore has alleged facts that, if true, are the basis for a weighty cause of action against his employer on state law grounds for punitive and compensatory tort and contract damages. Such actions will provide the substantial deterrence sought to be achieved by the majority through the device of the antitrust laws. ■ Although the California doctrine has been adopted only in some jurisdictions, the number is increasing, see Phillips v. Goodyear Tire & Rubber Co., 651 F.2d 1051, 1055 (5th Cir. 1981); Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L.Rev. 1816, 1822-24 (1980) (discussing “public policy” exception and its growth), and the substantive rights of recovery for such conduct rightfully should occur in the employee discharge context, rather than under the antitrust laws aimed at product competition. This sensitive development in the law of employer-employee relations should not be pretermitted by heavy-handed interference from the federal courts in the name of enforcing laws designed only for protecting the nation’s competitive economic system. I do not believe federalism is destined to fail, but neither is its continuance necessarily assured. If it does disappear, it will be primarily because those charged with enforcement of federal laws cannot resist the temptation to expand their jurisdiction to the outermost limits of abstract logic, even where history and common sense tell us the independent" }, { "docid": "13043148", "title": "", "text": "of Appeals in Hart lacked the authority to modify the test enunciated by the California Supreme Court in Cole. In any event, the alleged misconduct in this case is certainly not a “normal part of the employment relationship.” Miller and Lewis contend that they suffered emotional distress as a result of being laid off following settlement negotia tions concerning their complaints of racial discrimination. In our view, this is not a “normal” pattern of events in the workplace, and no California court has characterized it as such. On the contrary, the court in Hart indicated that the California courts do not broadly construe the term a “normal part of the employment relationship.” See Hart, 235 Cal.Rptr. at 74 (“there can be little doubt” that sexual harassment by a manager toward a lower level employee is not “a normal part of employment”). VII. PUNITIVE DAMAGES Miller and Lewis contend that the district court erred in dismissing their claim for punitive damages for breach of contract and for the negligent infliction of emotional distress. The district court’s ruling was correct with respect to the breach of contract claim. California law does not permit punitive damages for breach of contract. Section 3294(a) of the California Civil Code expressly provides that punitive damages are recoverable only for actions “not arising from contract.” See also Sawyer v. Bank of America, 83 Cal.App.3d 135, 145 Cal.Rptr. 623, 626 (1978) (“the only supportable theory of liability was for breach of contract.... Hence, the award of punitive damages cannot be sustained”). The district court erred in dismissing the appellants’ punitive damages claim for the negligent infliction of emotional distress. In our previous opinion in this case, we noted that Miller’s and Lewis’s negligent infliction of emotional distress claim “[presumably ... does not refer to Fairchild’s asserted retaliatory discharge [but rather to] Fairchild’s act of negotiating settlement agreements and then laying off [Miller and Lewis] prior to their enjoyment of benefits implied under the contract.” Miller, 797 F.2d at 738. Miller’s and Lewis’s negligent infliction of emotional distress count clearly could be read as alleging that Fairchild consciously disregarded" }, { "docid": "23017582", "title": "", "text": "an element of damages that the defendant had not had a chance to contest at trial. A related question is whether the evidence of damages was adequate to support the jury’s verdict. The jury awarded Avitia $42,000 in backpay and $21,000 in compensation for nonpecuniary loss, and let us start with the second. The Club argues that the testimony of Avitia that we quoted, which is the only evidence on which the jury could have based the award of the $21,000, does not, even if fully credited, establish emotional suffering grave enough to warrant any award of damages. (Why, he didn’t even lose any sleep, as the Club’s lawyer reminded us indignantly at the argument.) This contention rests on a confusion between two issues, the severity of emotional distress that is necessary to state a claim for intentional infliction of emotional distress and the amount of proof required to establish damages for emotional distress in a suit charging a different tort, here the statutory tort of retaliating against a person who complains about a violation of the Fair Labor Standards Act. Concerns about the subjectivity of the tort of intentional infliction of emotional distress have persuaded the courts to require that the plaintiff prove that the distress inflicted was severe; and while the exact height of the threshold of required severity is unclear, it plainly is not reached by this case. See Bristow v. Drake Street Inc., 41 F.3d 345, 349-50 (7th Cir.1994). But this is not a case of intentional infliction of emotional distress. It is a case of wrongful discharge where the governing statute entitles the plaintiff to recover damages for the full consequences of the discharge including — we have held specifically — emotional distress. Travis v. Gary Community Mental Health Center, Inc., supra, 921 F.2d at 111-12; Soto v. Adams Elevator Equipment Co., 941 F.2d 543, 551-52 (7th Cir.1991). The distress need not cross some threshold of severity to be a basis for damages. This is true in the vast majority of eases in which common law damages are recoverable. It is only with respect to" }, { "docid": "3400420", "title": "", "text": "the evidence was as to just what the understanding was, what the meeting of the minds was, between these men and Hilton back in 1970 and '71 when it bought the International.” RT XLVII 31 (emphasis added). Because no reasonable jury could have found an agreement at that time, the later expressions by management are irrelevant to the issues before us. . Nevada law recognizes two torts related to employment termination: Bad faith discharge, which is based on firing the employee in violation of the implied covenant of good faith and fair dealing in the employment contract, and tortious discharge, which is based on firing the employee in violation of public policy. D’Angelo, 819 P.2d at 211-12. In the absence of an employment contract, a plaintiff can recover only under the latter theory. Id. at 216. \"The prototypical tortious discharge case is [Hansen v. Hurrah’s, 100 Nev. 60, 675 P.2d 394 (1984) ], in which an employee claimed to have been discharged to penalize him because he had filed a workers compensation claim.” Id. No such conduct is alleged in this case. In fact, the Nevada Supreme Court has \"refused to recognize an action for tortious discharge even though the defendant had clearly violated Nevada's public policy against age discrimination.” Id. 819 P.2d at 216-17 (citing Sands Regent, 777 P.2d at 900). In any event, \"[n]o public policy tort was pursued by Plaintiffs.” Supplemental Brief of Appellees/Cross Appellants at 9. Plaintiffs cannot recover for tortious discharge. . Because plaintiffs were not entitled to any damages for breach of contract or bad faith discharge, we need not address their argument that they should have been awarded emotional distress damages for bad faith discharge. . The California Supreme Court will soon consider the issue for the first time. Lanouette v. Ciba-Geigy Corp., 230 Cal.App.3d 889, 272 Cal.Rptr. 428, review granted, 29 Cal.3d 615, 275 Cal.Rptr. 420, 800 P.2d 898 (1990). . We need not address Hilton’s argument that the award of prejudgment interest on the emotional distress damages was improper under Nevada law. As we have struck down the damages award, the" }, { "docid": "5667666", "title": "", "text": "the tort. Nonetheless, he contends that he should not have to satisfy the tort’s stringent pleading requirements in order to recover damages for his emotional suffering. According to Patton, a plaintiff needs to plead the four elements of intentional infliction of emotional distress only if he intends to state an independent claim for that tort, a claim unrelated to any other wrongful or tortious conduct. Patton insists that he is not attempting to maintain such an independent claim. Rather, he characterizes his emotional distress claim as derivative; his mental anguish stems from UCH’s alleged acts of age discrimination and breach of contract. If these acts provided the basis for an award of damages, Patton asserts that he could also recover damages for psychic pain simply by demonstrating that UCH’s wrongful conduct caused him emotional distress. In support of this theory, Patton cites section 47 of the Second Restatement of the Law of Torts: Where ... tortious conduct ... results in the invasion of another legally protected interest, ... emotional distress caused either by the resulting invasion or by the conduct may be a matter to be taken into account in determining the damages recoverable. In many instances there may be recovery for emotional distress as an additional, or “parasitic” element of damages in an action for such a tort. Restatement (Second) of Torts § 47 comment b (1965). In law as in biology, a parasite can survive only by drawing sufficient nourishment from its host. Unfortunately for Patton, neither his ADEA claim nor his contract claim can serve as an adequate host for his parasitic claim for intentional infliction of emotional distress. Under the ADEA, a plaintiff cannot recover damages for emotional suffering caused by age discrimination. Pfeiffer v. Essex Wire Corp., 682 F.2d 684, 686-88 (7th Cir.), cert. denied, 459 U.S. 1039, 103 S.Ct. 453, 74 L.Ed.2d 606 (1982); Wilkes v. United States Postal Service, 548 F.Supp. 642 (N.D.Ill.1982). Similarly, Illinois law does not permit compensation for mental distress resulting from a breach of contract, “except where the breach was wanton or reckless and caused bodily harm, or where" }, { "docid": "18054361", "title": "", "text": "Dan B. Dobbs, Law of Remedies § 1.7 (2d ed.1993) (stating that, because “remedies are means of carrying into effect the substantive right,” “the remedy should reflect the right or the policy behind that right as precisely as possible”). Additionally, we take note of the common-law background to SOX’s antiretali-ation claim. At common law, many jurisdictions recognize torts for wrongful discharge of employment, which, in many cases, is essentially an antiretaliation claim analogous to the cause of action at issue here, and the courts in such jurisdictions allow recovery of noneconomic compensatory damages, emotional distress damages specifically, for such claims. See, e.g., Smith v. Atlas OffShore Boat Svc., Inc., 653 F.2d 1057 (5th Cir.1981); Merchant v. Am. S.S., Co., 860 F.2d 204 (6th Cir.1988); Hentzel v. Singer Co., 138 Cal.App.3d 290, 188 Cal.Rptr. 159 (1982); Perry v. Hartz Mountain Corp., 537 F.Supp. 1387 (S.D.Ind.1982); Niblo v. Parr Mfg., Inc., 445 N.W.2d 351 (Iowa 1989); Chavez v. Manville Prods. Corp., 108 N.M. 643, 777 P.2d 371 (1989); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); Cagle v. Burns and Roe, Inc., 106 Wash.2d 911, 726 P.2d 434 (1986); Harless v. First Nat’l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982). This court, for example, in Smith v. Atlas Off-Shore Boat Service, Inc., recognized a maritime-law wrongful-discharge claim where an employee was terminated in retaliation for filing a personal-injury case against the employer, and we held that the employee was “entitled to recover compensatory damages for mental anguish that he may suffer as a result of the wrongful discharge.” 653 F.2d at 1064. This common-law backdrop would tend to suggest that, when Congress created- SOX’s statutory antiretaliation right and specified that recovery thereunder includes “all relief necessary to make the employee whole” (emphasis added), it intended to encompass within the statute’s broad ambit such damages as are often available at common law for analogous claims. In light of SOX’s plain text and the foregoing considerations, we find that the statute affords noneconomic compensatory damages, including emotional distress and reputational harm. SOX affords “all relief necessary to make the" }, { "docid": "5481496", "title": "", "text": "wilful. Not every default by the union that constitutes a breach of its duty of fair representation necessarily amounts to that aggravated conduct for which mental distress and possibly punitive damages may be awarded. Even if the union’s conduct was so extreme as to warrant compensation for mental distress, there was no evidentiary showing or judicial finding that the conduct was the proximate cause of all of appellee’s mental suffering throughout his years of unemployment. See St. Clair v. Local 515, International Brotherhood of Teamsters, supra, 422 F.2d at 132. Like the award of back pay, in those exceptional cases which call for mental distress damages, the union should only be liable for the proportionate amount flowing from its conduct and not from the employer’s wrongful discharge. Generally, therefore, the union will not be liable for the mental anguish of unemployment, provided it was not responsible for the discharge. The district court’s award, to the extent that it charges the union for all the emotional injury of prolonged unemployment, is improper. The district court’s award was not based on any finding that appellee suffered actual, though intangible, mental injury. Indeed, no evidence was presented at trial indicating any actual emotional harm. The element of speculation is a necessary evil inherent in valuation of the emotional harm caused by violation of a federal right. Special caution against excessive awards is counseled in the labor law context where a carefully conceived and administered balance between the rights, powers and duties of union, management and individual employee has been established by Congress on a national scale. See Farmer v. United Brotherhood of Carpenters, Local 25, 430 U.S. 290, 305-06, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). For that reason, damages for mental distress are only appropriate in cases of extreme misconduct. Intentional discrimination against an employee because of his non-union status or his criticism of union policies, may cause intangible injuries for which reasonable compensation should be awarded. But the fact that the injury is mental does not mean it need not be actual and subject to proof. See Carey v. Piphus, 435" }, { "docid": "217811", "title": "", "text": "and discrimination against her for having applied for workers’ compensation benefits. The jury found for Sky Chefs on the workers’ compensation claim, but found for Dias on the wrongful discharge and intentional tort claims. The jury awarded Dias $125,000 in general damages and $500,000 in punitive damages. Sky Chefs filed a post-trial motion for judgment notwithstanding the verdict, which was denied. It now appeals, asserting the following: (1) The evidence could not, as a matter of law, support a finding of liability for wrongful discharge or intentional infliction of emotional distress; (2) Punitive damages could not be awarded in this case as a matter of law; and the general damages were excessive; (3) Sky Chefs is entitled to a new trial, because of misconduct by Dias’ attorney and because of various mistakes by the trial court; (4) Sky Chefs was denied a fair trial because the only three men in the jury venire were struck by peremptory challenge, leaving an all-woman jury. We address the claims sequentially. II. We will reverse a jury finding of liability only if “without weighing the credibility of the witnessés, the evidence and its inferences, considered as a whole and viewed in light most favorable to the [prevailing] party ... can support only one reasonable conclusion....” Davison v. Pacific Inland Nav. Co., Inc., 569 F.2d 507, 509 (9th Cir.1978); see also Walker v. KFC Corp., 728 F.2d 1215, 1223 (9th Cir.1984). Since this is a diversity action, we apply the law of Oregon to the claims of wrongful discharge and intentional infliction of emotional distress. County of Maricopa of State of Ariz. v. Maberry, 555 F.2d 207, 210 (9th Cir.1977). A. Wrongful Discharge. Under Oregon law, [T]he common law rule for “at will” employment prevails unless the employe is discharged while pursuing a right related to his or her role as an employe and the right is one of important public interest indicated by constitutional and statutory provisions and caselaw.... We have stated that sexual harassment on the job is a forbidden discriminatory act under state and federal law and an employe has a legal" }, { "docid": "2206888", "title": "", "text": "convert property of Barhonovich because the check had served its intended purpose of paying his premium. See American Cas. Co., 206 So.2d at 844; Dearman, 727 F.2d at 480. American National was not guilty of negligence in failing to credit Barhonovich’s account, in failing to handle his policy properly, or in allowing him to remain uninsured for over two years. Barhonovich asserts that he suffered mental anguish when he learned of Broussard’s actions and that American National had can-celled his policy. It is undisputed, however, that Barhonovich suffered no physical manifestation of his alleged mental anguish and did not see a physician. Under Mississippi law, emotional distress without physical bodily injury is not compensable. Sears, Roebuck & Co. v. Young, 384 So.2d 69, 72 (Miss.1980). Barhonovich argues that this reasoning does not control his claim because Mississippi law allows punitive damages for mental distress without a showing of physical injury if the mental distress was the result of gross negligence. Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397, 1401 (5th Cir.1986); Sears, Roebuck & Co. v. Devers, 405 So.2d 898, 902 (Miss.1981). Barhonovich contends that Broussard’s actions constitute gross negligence and warrant the imposition of punitive damages on American National. Punitive damages may be awarded against an insurance company when the company willfully and maliciously breaches its contract with the insured. Standard Life Ins. Co. of Indiana v. Veal, 354 So.2d 239 (Miss.1977). The breach must be either wanton and malicious or must be associated with an intentional wrong, insult, abuse or such gross negligence as to constitute an independent tort. Lincoln Nat. Life Ins. Co. v. Crews, 341 So.2d 1321, 1322 (Miss.1977); New Hampshire Ins. Co. v. Smith, 357 So.2d 119, 121 (Miss.1978). Neither is present here. Broussard’s misrepresentations cannot be the basis for awarding punitive damages against American National. American National did not authorize Broussard to modify the contract. American National has not denied a claim under the contract. American National has not breached the contract. The record shows no negligence, much less gross negligence, on the part of American National. Broussard’s acts can not be" }, { "docid": "5667667", "title": "", "text": "invasion or by the conduct may be a matter to be taken into account in determining the damages recoverable. In many instances there may be recovery for emotional distress as an additional, or “parasitic” element of damages in an action for such a tort. Restatement (Second) of Torts § 47 comment b (1965). In law as in biology, a parasite can survive only by drawing sufficient nourishment from its host. Unfortunately for Patton, neither his ADEA claim nor his contract claim can serve as an adequate host for his parasitic claim for intentional infliction of emotional distress. Under the ADEA, a plaintiff cannot recover damages for emotional suffering caused by age discrimination. Pfeiffer v. Essex Wire Corp., 682 F.2d 684, 686-88 (7th Cir.), cert. denied, 459 U.S. 1039, 103 S.Ct. 453, 74 L.Ed.2d 606 (1982); Wilkes v. United States Postal Service, 548 F.Supp. 642 (N.D.Ill.1982). Similarly, Illinois law does not permit compensation for mental distress resulting from a breach of contract, “except where the breach was wanton or reckless and caused bodily harm, or where the defendant had reason to know, when the contract was made, that its breach would cause mental suffering for reasons other than mere pecuniary loss.” Maere v. Churchill, 116 Ill.App.3d 939, 944, 72 Ill.Dec. 441, 444, 452 N.E.2d 694, 697 (1983). Patton has failed to allege any of the exceptional circumstances that would warrant an award of damages for emotional distress stemming from UCH’s alleged breach of contract. Ultimately, Patton’s allegations of emotional suffering, even if proven, would not entitle him to additional damages. For this reason, the court dismisses Patton’s claim for intentional infliction of emotional distress. IV. Punitive Damages Finally, Patton seeks $1,000,000 in punitive damages; but his complaint provides no foundation for such an award. The ADEA prohibits Patton from recovering punitive damages for UCH’s allegedly discriminatory conduct. See Pfeiffer, 682 F.2d at 686-88. Moreover, Patton cannot recover punitive damages based on UCH’s alleged breach of contract unless “the breach constitutes an independent and willful tort accompanied by fraud, malice, wantonness or oppression.” Hunter Douglas Metals, Inc. v. Edward C. Mange Trading" }, { "docid": "3709624", "title": "", "text": "of general damages. Threlkeld v. CIR, 87 T.C. 1294, 1300, 1986 WL 22061 (1986). Emotional distress is not an ordinary consequence of patent or copyright infringement, however, and would fall into the category of “special damages” for those torts. Cf. Smith v. DeBartoli, 769 F.2d 451, 453 n. 2 (7th Cir.1985). The classification of emotional distress can be difficult: are emotional injuries expected, or unexpected, when the wrong in question is retaliation against a whistleblower? Getting the distinction right might matter for pleading (see Fed.R.Civ.P. 9(g)), or it might determine whether one has a claim at all (for instance, the tort of malicious prosecution requires the plaintiff to show “special damages” beyond the annoyances that wrongful litigation usually creates. R.J.R. Services, Inc. v. Aetna Casualty & Surety Co., 895 F.2d 279, 282 (7th Cir.1989)). But for purposes of § 3730(h) it is unnecessary to classify emotional distress, because the statute allows both general and special damages. It provides for reinstatement and back pay, the usual remedies in wrongful-discharge cases. Perhaps this even implies that back pay is the “general damages” remedy. If loss of income from employment is the usual consequence, then emotional distress must be the unusual one, and hence compensable as special damages. On this understanding, § 3730(h) provides for double general damages, plus undoubled special damages. Honeywell should rest content that emotional distress is in the “special” category, and thus not doubled! Is $200,000 for emotional injury im-permissibly high? Honeywell says yes, citing a slew of discrimination cases that have ended with smaller recoveries for emotional distress. Had Neal merely lost her job as a result of the discrimination, we would think $200,000 excessive, even though Neal suffered ostracism, a yearlong depression, and upheaval in her life. But Neal’s claim is out of the ordinary, given the threats of physical injury. Neal feared that Young would figure out her role in the affair and “get” her as promised. So palpable was the risk that even Honeywell felt that the best course of action was to send Neal off on a one-month leave of absence, because it could" }, { "docid": "17994892", "title": "", "text": "discrimination in employment do not fit the traditional concepts of restitution that permit recovery of a benefit conferred by the injured party on the wrongdoer, or, more generally, prevent unjust enrichment of one person at the expense of another. See 638 F.2d at 1142. Second, the concept of restitution is not limited to relief in equity but clearly pervades traditional legal remedies as well, such as “quantum meruit” among the common counts. See Restatement of Restitution, Introductory Note, at 4 (1937); 1 G. Palmer, Law of Restitution, § 1.1 at 3-4 (1978). Thus whether or not back pay can properly be considered restitutionary, nothing about the present case implicates any need to apply equitable principles. There has been no showing, for example, that the traditional legal remedy, described below, is in any manner inadequate. The gist of a demand for “back pay” in a § 1981 action brought by a discharged or suspended employee, is breach of an employment contract by wrongful discharge. See, e.g., C. Sullivan, M. Zimmer, & R. Richards, Federal Statutory Law of Employment of Discrimination, § 9.9(c) at 581 (1980). Accord, Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971) (action under § 1981 to recover lost wages and to enjoin breach of contract). Cf. Ochoa v. American Oil Co., 338 F.Supp. 914, 918-19 (S.D.Tex.1972) (discriminatory discharge challenged under Title VII likened to common law action for breach of contract by wrongful discharge; jury trial denied because of fifth circuit precedent). “ ‘The rule of damages in such cases is what would have come to the plaintiff under the contract had it continued, less whatever the plaintiff might earn by the exercise of reasonable and proper diligence on his part.’ ” Pierce v. Tennessee Coal, Iron & Railroad Co., 173 U.S. 1, 15, 19 S.Ct. 335, 340, 43 L.Ed. 591 (1899) (citation omitted). See 5 Corbin on Contracts § 1095 (1951). Under familiar principles, therefore, plaintiff is entitled to a jury trial on issues pertaining to his “legal” claims for compensatory damages for emotional harm and for back pay under § 1981," }, { "docid": "6250780", "title": "", "text": "of an employment contract in an ordinary civil case that involved no claim of violation of anti-discrimination laws or civil rights laws. The parties have framed the issue as follows. Ordinarily, under Puerto Rico law, damages for pain and suffering are not recoverable in an action for contract. See, e.g., Mattei Nazario v. Vélez & Asoc., 145 D.P.R. 508, 1998 WL 313060, Offic. Trans. at 8 (1998) (“With regard to mental anguish and sufferings, we have repeatedly held that, ordinarily, they do not lie in actions for breach of contract..; González Mena v. Dannermiller Coffee Co., 48 P.R.R. 590, 598, 1935 WL 5709 (1935) (“Any damages for mental suffering suffered by the plaintiff are certainly not recoverable in this action, which is based on a breach of contract.”). In some cases, when the defendant in breach of contract has on the same facts also committed a tort and foreseeably and necessarily caused pain and suffering damages, such damages are allowable. Camacho v. Iglesia Catolica, 72 P.R.R. 332, 341, 1951 WL 7653 (1951). Stiefel stresses that there is no claim that it engaged in tortious activity and so argues that no emotional distress damages may be awarded. Stiefel separately argues that Muniz’s wife was not a party to the contract, and so she is not entitled to such damages in any event. The plaintiffs stress that it was foreseeable that the loss of expected employment would indeed cause pain and suffering, particularly given the difficulty of finding a job in Puerto Rico at Muniz’s age. The plaintiffs point out that Muñiz indicated in his letters to Pattullo that he was very concerned about his ability to find other employment in Puerto Rico. The district court essentially adopted the view that it is foreseeable in most employment termination cases, and in this one, that the employee and his or her spouse will experience emotional distress, and that they will therefore be able to seek damages for pain and suffering. Because the court believed that Stiefel’s breach of the contract was tortious and the plaintiffs’ resulting emotional distress damages foreseeable, it permitted recovery." }, { "docid": "18054360", "title": "", "text": "the question have concluded that the False Claims Act affords noneconomic compensatory damages. See Neal v. Honeywell, Inc., 191 F.3d 827, 832 (7th Cir.1999); Brandon v. Anesthesia & Pain Mgmt. Associates, Ltd., 277 F.3d 936, 944 (7th Cir.2002); Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886, 893 (8th Cir.2000). This would suggest that SOX does too. The Secretary of Labor also argues persuasively that, because the text of SOX’s antiretaliation provision proscribes certain employer conduct, namely “threat[s]” and “harass[ment],” see 18 U.S.C. § 1514A(a), that in the usual case will cause only non-economic harm such as emotional distress, rather than economic harm, it would be anomalous to construe the statute to fail to afford a corresponding remedy for such. We agree. It would be an odd result, to say the least, to construe a statute that prohibits certain “threat[sj” and “harass[ment]” against employees and purports to afford “all relief necessary to make the employee[s] whole” to not offer a remedy for the most usual and predictable result of threats and harassment, emotional distress. See Dan B. Dobbs, Law of Remedies § 1.7 (2d ed.1993) (stating that, because “remedies are means of carrying into effect the substantive right,” “the remedy should reflect the right or the policy behind that right as precisely as possible”). Additionally, we take note of the common-law background to SOX’s antiretali-ation claim. At common law, many jurisdictions recognize torts for wrongful discharge of employment, which, in many cases, is essentially an antiretaliation claim analogous to the cause of action at issue here, and the courts in such jurisdictions allow recovery of noneconomic compensatory damages, emotional distress damages specifically, for such claims. See, e.g., Smith v. Atlas OffShore Boat Svc., Inc., 653 F.2d 1057 (5th Cir.1981); Merchant v. Am. S.S., Co., 860 F.2d 204 (6th Cir.1988); Hentzel v. Singer Co., 138 Cal.App.3d 290, 188 Cal.Rptr. 159 (1982); Perry v. Hartz Mountain Corp., 537 F.Supp. 1387 (S.D.Ind.1982); Niblo v. Parr Mfg., Inc., 445 N.W.2d 351 (Iowa 1989); Chavez v. Manville Prods. Corp., 108 N.M. 643, 777 P.2d 371 (1989); Nees v. Hocks, 272 Or. 210, 536 P.2d 512" }, { "docid": "23090869", "title": "", "text": "relationship.” See Hart, 235 Cal.Rptr. at 74 (“there can be little doubt” that sexual harassment by a manager toward a lower level employee is not “a normal part of employment”). VII. PUNITIVE DAMAGES Miller and Lewis contend that the district court erred in dismissing their claim for punitive damages for breach of contract and for the negligent infliction of emotional distress. The district court’s ruling was correct with respect to the breach of contract claim. California law does not permit punitive damages for breach of contract. Section 3294(a) of the California Civil Code expressly provides that punitive damages are recoverable only for actions “not arising from contract.” See also Sawyer v. Bank of America, 83 Cal.App.3d 135, 145 Cal.Rptr. 623, 626 (1978) (“the only supportable theory of liability was for breach of contract.... Hence, the award of punitive damages cannot be sustained”). The district court erred in dismissing the appellants' punitive damages claim for the negligent infliction of emotional distress. In our previous opinion in this case, we noted that Miller’s and Lewis’s negligent infliction of emotional distress claim “[presumably ... does not refer to Fairchild’s asserted retaliatory discharge [but rather to] Fairchild’s act of negotiating settlement agreements and then laying off [Miller and Lewis] prior to their enjoyment of benefits implied under the contract.” Miller, 797 F.2d at 738. Miller’s and Lewis’s negligent infliction of emotional distress count clearly could be read as alleging that Fairchild consciously disregarded their contract rights when it laid them off. This count alleged (by incorporation) that Fairchild’s acts were “willful, wanton, malicious and oppressive.” Under California law, a defendant’s “conscious disregard” of a plaintiff’s rights justifies the award of punitive damages. See California Civil Code §§ 3294(a) and 3294(c) (punitive damages may be awarded where the defendant acted with “malice”; malicious conduct includes “conduct which is carried on by the defendant with conscious disregard of the rights or safety of others”). See also Petersen v. Superior Court, 31 Cal.3d 147, 181 Cal.Rptr. 784, 791, 642 P.2d 1305, 1312 (1982) (“the law in California ha[s] evolved in the area of punitive damages to the" } ]

[ { "docid": "23681825", "title": "", "text": "protected activity. Nor have Plaintiffs plausibly alleged that any adverse action by Defendants was motivated at least in part by Plaintiffs’ constitutionally protected activity. C. Equal Protection Claim We now turn to Plaintiffs’ Fifth Amendment claim, alleging that Defendants violated Plaintiffs’ right to equal protection “by targeting Plaintiffs for disfavored treatment on account of Plaintiffs’ viewpoint on certain political issues.” (Am. Compl. f 120.) The Fifth Amendment, of course, does not itself contain a guarantee of equal protection, but instead incorporates, as against the federal government, the Equal Protection Clause of the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884 (1954). We evaluate equal protection claims against the federal government under the Fifth Amendment just as we would evaluate equal protection claims against state and local governments under the Fourteenth Amendment. See United States v. Angel, 355 F.3d 462, 471 (6th Cir.2004) (citing Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). The Equal Protection Clause of the Fourteenth Amendment commands that “no state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. To state an equal protection claim, a plaintiff must adequately plead that the government treated the plaintiff “disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.” Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 299 (6th Cir.2006). As we have held, the “threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by government decision-makers.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir.2006). In this case, the Amended Complaint fails to make a plausible allegation that similarly situated organizations and individuals, of a different political viewpoint, have not been subject to the same alleged treatment by Defendants. See Nali v. Ekman, 355 Fed.Appx. 909," } ]

[ { "docid": "14384291", "title": "", "text": "being brought pursuant to 42 U.S.C. § 1983 for the violation of constitutional rights by state actors. Section 1983 “is not itself a source of substantive rights” but “merely provides a method for vindicating federal rights elsewhere conferred.” Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (citations and internal quotation marks omitted). The two federal rights arguably implicated by Plaintiffs’ Complaint are the right to equal protection and the right to due process. The Court addresses each in turn. A. Equal Protection Plaintiffs’ first cause of action alleges that the City violated the Equal Protection Clause of the Fourteenth Amendment by failing to enforce “virtually every significant statutory provision intended to ensure the maintenance of safe and healthy housing,” “conduct[ing] inadequate inspections ... and issuing] a certificate of occupancy.” (Compl. ¶¶ 68, 72.) They also rest this claim on the continued refusal “to inspect Plaintiffs buildings, notice the many egregious defects and violations present, or ensure that effective and adequate repairs are completed.” (Compl. ¶ 70.) Plaintiffs vaguely allege that the “ownership pool” of the Madison Park houses is comprised “predominately of minorities.” (Compl. ¶ 65.) However, no plaintiff alleges that he or she is a minority or if so, to what protected class he or she belongs. The Equal Protection Clause requires the government to treat all similarly situated people alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). While the typical equal protection claim concerns discrimination based on membership in a protected class, where, as here, a plaintiff does not actually allege membership in such a class, she can still prevail under a “class of one” equal protection claim. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). In the Second Circuit, to state a “class of one” claim under Olech, Plaintiffs must allege: (1) that they were intentionally treated differently from other similarly situated individuals; and (2) that the disparate treatment was either (a) “irrational and wholly arbitrary” or (b) motivated by animus. Harlen Assocs. v. Inc." }, { "docid": "18309538", "title": "", "text": "the same allegation of excessive force giving rise to Mr. Smith’s substantive due process claim based on his loss of life also gives the children a substantive due process claim based on their loss of his companionship.”). In the absence of an underlying constitutional violation, plaintiffs’ family relations claim fails. Accordingly, the summary judgment motion is therefore GRANTED as to all aspects of plaintiffs’ due process claim. C. Equal Protection Plaintiffs contend they were denied equal protection of the laws on the basis of their ethnicity and based on the exercise of their fundamental rights. The Equal Protection Clause ensures that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Plaintiffs argue that they were treated differently because of their Mexican ethnicity; however, there is no evidence of record that suggests the students were disciplined on this basis, and defendants are therefore entitled to summary judgment on this claim to the extent it is based on alleged disparate treatment based on their ethnicity- Plaintiffs also argue that they were disciplined based on their decision to exercise a fundamental right, namely, their free speech rights. However, as set forth above, the Court has ruled that plaintiffs’ First Amendment rights were not violated. Therefore, plaintiffs cannot prevail on this claim. Accordingly, the summary judgment motion is GRANTED as to all aspects of plaintiffs’ Equal Protection claim. D. § 1985(3) Claim In relevant part, 42 U.S.C. § 1985(3) provides: If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more" }, { "docid": "22590049", "title": "", "text": "all similarly situated people alike.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). To succeed in an action alleging selective prosecution, plaintiffs in this Circuit have been required to show both (1) that they were treated differently from other similarly situated individuals, and (2) that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Harlen Assocs., 273 F.3d at 499 (internal citation and quotation marks omitted). Describing their “selective prosecution” claim, the plaintiffs contend in their appellate brief that they “were treated differently from others similarly situated and that the motivation for that disparate treatment was a malicious intent to injure the plaintiffs and to punish them for the exercise of their constitutional rights— to associate with [COBA].”. Due to the manner in which they have cast their contentions throughout this action, the plaintiffs’ selective prosecution and retaliation claims “coalesce.” African Trade & Info. Ctr., 294 F.3d at 363. The plaintiffs’ selective prosecution claim requires proof that the defendants treated them differently because of their membership in COBA. Our holding on the First Amendment retaliation claim, that the evidence in this case was insufficient, as a matter of law, to show that the defendants disciplined the plaintiffs based on their membership in COBA requires that we direct entry- of judgment for the defendants on the plaintiffs’ selective prosecution claim as well. See Vukadinovich v. Bartels, 853 F.2d 1387, 1392 (7th Cir.1988). Unlike their selective prosecution claim, the plaintiffs’ Olech-based equal protection claim is not dependent on their ability to prove that they were disciplined for an impermissible reason, i.e., for their COBA membership. Rather, under Olech, the plaintiffs can recover if they can show that they were treated differently from similarly situated officers, such as Officers Conway and Vanderwerff, and that there was “no rational basis for the difference in treatment.” Olech, 528" }, { "docid": "18235594", "title": "", "text": "person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (internal quotation marks omitted). “The Clause does not take from the States all power of classification, but keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2001) (internal citations and quotation marks omitted). To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny. Id. “[C]hallenged classification^] need only be rationally related to a legitimate state interest unless it violates a fundamental right or is drawn upon a suspect classification such as race, religion, or gen der.” Giarratano v. Johnson, 521 F.3d 298, 303 (4th Cir.2008). Plaintiffs have failed to allege facts to support an inference that Spartan-burg High School students who participate in the RTP are treated differently than students who choose not to participate. Further, Plaintiffs have not provided factual allegations to support intentional or purposeful discrimination against students who do not participate in the RTP. Additionally, Plaintiffs have not provided sufficient factual allegations to establish an Equal Protection Clause claim based on SCBEST’s unaccredited status. Plaintiffs provide no factual allegations that suggest that SCBEST’s program is not rationally related to Defendant’s legitimate interest in providing RTPs for students who choose to participate. Accordingly, the court grants Defendant’s motion to dismiss Plaintiffs’ Equal Protection Clause claim. 5. Motion for Leave to File Sur Reply Plaintiffs filed a motion for leave to file a sur reply alleging that Defendant discussed information outside of the scope of the motion to dismiss the Equal Protection Clause claim. (Pis. Mot. File Sur Reply 2.)" }, { "docid": "2518700", "title": "", "text": "Although the present case does not involve a case of adverse employment consequences, it does raise the question of whether the right to political association, as understood to include “political alignment and beliefs” and not just endorsement of electoral candidates, was clearly established as early as December 1996. Thus, the Bass analysis and conclusion that this right was sufficiently defined — -based on caselaw from as much as twenty-five years ago — applies with equal force to the present case. The Court also finds that a reasonable state actor would have understood Has-ford’s conduct to be violative of Plaintiffs’ First Amendment rights. The Court does not believe that “officers of reasonable competence could disagree,” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), that taking action for the purpose of targeting Plaintiffs for their speech and/or association with Morrow is behavior countenanced by the Constitution. Accordingly, the Court concludes that Defendant Hasford is not entitled to qualified immunity on Plaintiffs’ claim of retaliation in violation of their First Amendment rights to free speech and free association. B. Equal Protection claim In their allegation of unconstitutional unequal treatment, Plaintiffs state that Defendants’ actions towards them “were carried out arbitrarily, capriciously, in spite, ill will [sic] and with a malignant animosity,” and that Plaintiffs “were singled out and not treated like other similarly situated businesses in Angel Fire.” (First Amended Complaint at ¶ 59.) 1. Whether Plaintiffs’ allegations establish that Hasford violated their Equal Protection rights The constitutional guarantees of equal protection are violated when the government treats one individual differently from another who is similarly situated. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Although Plaintiffs here have not alleged either that they are members of a constitutionally protected class or that any of their fundamental rights have been violated, viable equal protection claims may be brought by a “ ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for" }, { "docid": "1940701", "title": "", "text": "laws.” U.S. Const. Amend. XIV. The Elqual Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Plaintiff alleges that he was selectively treated in that other candidates, who were ranked lower on the eligibility list, were appointed as police officers. A plaintiff may establish an equal protection claim on two different selective treatment theories. Gillum v. Nassau Downs Regional Off Track Betting Corp. of Nassau, 357 F.Supp.2d 564, 571 (E.D.N.Y.2005). First, a plaintiffs equal protection rights are violated where government intentionally treated him or her differently from others similarly situated because of personal animus. Id.; see also LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.1980). Second, a claim of selective treatment may be established where a similarly situated individual was treated differently by a state official who acted in an arbitrary manner and without rational basis. Gillum, 357 F.Supp.2d 564, 571 (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). Here, plaintiff alleges that defendants intentionally treated him differently from other police officer applicants because of a malicious intent to injure him. As the Second Circuit has noted, “cases predicating constitutional violations on selective treatment motivated by ill-will, rather than by protected-class status or an intent to inhibit the exercise of constitutional rights, are ‘lodged in a murky corner of equal protection law in which there are surprisingly few cases and no clearly delineated rules to apply.’ ” Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir.2005) (quoting LeClair, 627 F.2d at 608). To establish a violation of equal protection based upon this theory, plaintiff must show that: (1) he was selectively treated compared with others similarly situated, and (2) the selective treatment was based upon impermissible considerations, such as membership in a suspect class, intent to inhibit or punish the exercise of a constitutional right, or malicious or bad faith intent to injure. Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir.2001); Lisa’s" }, { "docid": "731661", "title": "", "text": "Amendment is “essentially a direction that all persons similarly situated be treated alike.” Latrieste Restaurant v. Village of Port Chester, 188 F.3d 65, 69 (2d Cir.1999) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). To state a claim for denial of equal protection based on selective enforcement of the law, plaintiffs must allege that (1) they were selectively treated, as compared with others similarly situated; and (2) that such selective treatment was based on impermissible considerations, such as an intent to inhibit or punish the exercise of constitutional rights. See id.; see also Birmingham v. Ogden, 70 F.Supp.2d 353, 372 (S.D.N.Y.1999) (finding that the complaint stated an equal protection claim where it alleged selective treatment based on plaintiffs exercise of protected speech); Burns v. Cook, 458 F.Supp.2d 29, 42-43 (N.D.N.Y.2006) (same). Drawing all reasonable inferences in favor of the nonmovant, the Court finds that the complaint states a claim for an equal protection violation. First, taken as a whole, the complaint states that plaintiffs were selectively treated as compared with others similarly situated. Plaintiffs allege that “the beneficiaries of the PERB I decision received their proper pay adjustments” under the CBA, while the PERB II employees, including plaintiffs, did not receive similar pay adjustments. (Comply 46.) Defendants may yet show that plaintiffs were not similarly situated to those employees affected by the PERB I decision; however, at this early juncture in the case, the Court declines to reach that conclusion. Second, the complaint alleges that the selective treatment of plaintiffs was based upon impermissible considerations — specifically, “because of [plaintiffs’] age ... and political affiliation[s].” (Cornpm 180(a), 183.) 6. Civil Rights Conspiracy Claims Plaintiffs allege a conspiracy under 42 U.S.C. §§ 1985 and 1986 (hereinafter, “Section 1985” and “Section 1986”) by defendants to deprive plaintiffs of their “rightful salary plan, step and raise increases.” (CompU 185.) Plaintiffs’ Section 1985 conspiracy claims are barred by the intracorporate conspiracy doctrine. The intracorporate conspiracy doctrine posits that the officers, agents and employees of a single corporate or municipal entity, each acting" }, { "docid": "20042893", "title": "", "text": "two claims under the Fourteenth Amendment: that the unlawful entry and search of her premises was a violation of her right to equal protection, and that the search, and its attendant circumstances, constituted an unlawful taking of her property. The defendants move to dismiss on the ground that plaintiff has failed to state a claim for either cause of action. The Court addresses each of these claims in turn and concludes that these claims cannot survive a motion to dismiss. 1. Equal Protection Clause ' Plaintiff brings a claim under the Fourteenth Amendment, alleging that she was deprived of “equal protection under the laws” of the United States. (Am. Compl. ¶¶ 64, 68.) The Young defendants move to dismiss this claim on the ground that plaintiff has not alleged that she was a member of a protected class or group or was treated differently than similarly situated persons. The Court agrees. Plaintiff has failed to allege sufficient facts to support a plausible claim under the Equal Protection Clause against any defendant. The Equal Protection Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Plaintiff does not allege a violation of equal protection due to her membership in a protected group or class, but an individual not alleging invidious discrimination on the basis of membership in some group may nevertheless prevail on an equal protection claim under the “class of one” theory recognized by the Supreme Court in Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Under a “class of one” equal protection claim, a plaintiff must allege that (1) “[she] has been intentionally treated differently from others similarly situated” and (2) “there is no rational basis for the difference in treatment.” Willowbrook, 528 U.S. at 564, 120 S.Ct. 1073; see also Giordano v. City of N.Y., 274 F.3d 740, 743 (2d Cir.2001). In order to state an equal protection violation under § 1983, “it is axiomatic that plaintiff must allege" }, { "docid": "5885981", "title": "", "text": "invoke their rights to procedural due process under two theories: (1) that the ordinance deprives them of privacy “without first requiring the defendants to obtain a search warrant based on probable cause” (Count Two); and (2) that the enforcement procedures deprive them of their right “to be free from unreasonable searches and seizures without first due process of law” (Count Three). These claims actually implicate plaintiffs’ Fourth Amendment rights to protection from unreasonable searches, and their rights of privacy. The Court analyzes these claims separately, below. B. Equal Protection 1. Landlord Plaintiffs The landlord plaintiffs claim that on its face and as applied, the occupancy limit classifies landlords according to the location of their property and has a disparate impact on landlords in RS zoning districts in violation of their rights to equal protection (Count Six). The City asserts that this claim is legally insufficient. The equal protection clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, Equal Protection Clause. When the government treats plaintiffs differently than it treats similarly situated individuals, it implicates plaintiffs’ right to equal protection. See Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Courts have devised the following standards to determine the validity of official action which is challenged on equal protection grounds: Id. at 440, 105 S.Ct. 3249 (internal citations omitted). If plaintiffs do not allege discrimination against a suspect class or that the classification burdens a fundamental right, the City only needs a rational justification for its actions. Watson v. City of Kan. City, Kan., 80 F.Supp.2d 1175, 1190 (D.Kan.1999) (citing Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.1996)). Examples of a “fundamental right” include the right to vote, the right of interstate travel, the rights guaranteed by the First Amendment, and the right to procreate. Friedman v. Beame, 558 F.2d 1107, 1112 n. 9 (2d Cir.1977); see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336 n. 1, 115 S.Ct. 1511, 131 L.Ed.2d 426" }, { "docid": "18235593", "title": "", "text": "and Smith. Neither Smith nor Zorach addressed an unaccredited private religious organization granting students an academic grade, such as in the instant case. Moreover, the court finds that Oakbrook’s involvement with the grading process presents a significant factual difference from Zorach and Smith. Based on the foregoing, the court finds that Plaintiffs have stated a facially plausible Establishment Clause claim and denies Defendant’s motion to dismiss the Establishment Clause cause of action. 4. Equal Protection Clause Defendant also seeks to dismiss Plaintiffs’ Equal Protection Clause cause of action. Plaintiffs allege that Spartanburg is (1) ... allowing SCBEST to discriminate among students for religious reasons by adjusting their academic grade based on SCBEST’s perception of the student’s religious status or progress or lack thereof and (2) ... not allowing unaccredited schools other than SCBEST to have their grades transferred as coming from an accredited private school [in violation of the Equal Protection Clause], (Pis. Second Mem. Opp’n Mot. Dismiss 2-3.) “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (internal quotation marks omitted). “The Clause does not take from the States all power of classification, but keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2001) (internal citations and quotation marks omitted). To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny. Id. “[C]hallenged classification^] need only be rationally related to a legitimate state interest unless it violates a fundamental right or is drawn upon" }, { "docid": "23564689", "title": "", "text": "allow Morrison to obtain the requested property, the district court emphasized that it was “simply enjoinfing] the Defendants from using race as the only factor in their initial determination of whether Morrison is entitléd to a religious exemption from the existing personal property restrictions.” J.A. 300-01. Defendants Garraghty and Millard now appeal. II. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Clause “does not take from the States all power of classification,” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 271, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), but “keeps governmental decision-makers from treating differently persons who are in all relevant respects alike,” Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). See also City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (holding that the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike”). To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny. See e.g., City of Cleburne, 473 U.S. at 439-40, 105 S.Ct. 3249; In re Long Term Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 471 (4th Cir.), cert. denied Mickle v. Moore, 528 U.S. 874, 120 S.Ct. 179, 145 L.Ed.2d 151 (1999); Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 818-19 (4th Cir.1995). Ordinarily, a state regulation or policy will be presumed to be valid and will be sustained if the classification is rationally related to a legitimate state interest. See City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. When the state classifies by race, alienage, or" }, { "docid": "23265707", "title": "", "text": "Amendment rights. The deputy sheriffs had every right to attend the show and park in the parking lot just as any other patron. See Lewis, 385 U.S. at 211, 87 S.Ct. 424; Dobard, 824 So.2d at 1133. The concert proceeded as scheduled, and the amended complaint does not allege that the deputy sheriffs interfered so as to prevent any persons who wanted to attend from attending. Moreover, plaintiffs have not alleged that Hilton, Slocum, Rauls, or LaCour were personally involved in the events on the night of the Paul Wall concert. Therefore, defendants are entitled to qualified immunity because plaintiffs have not alleged that any of the defendants denied Club Retro, L.L.C., Lyle, or Dar use of Club Retro for First Amendment protected expression. We reverse the district court’s order on this claim. 5. Equal Protection Violations Hilton, Slocum, Rauls, and LaCour are entitled to qualified immunity for plaintiffs’ Fourteenth Amendment equal protection claims because plaintiffs have failed to allege either an intent to discriminate or unequal treatment. The Fourteenth Amendment prohibits a state from “denypng] to any person within its jurisdiction the equal protection of the laws.” This “Equal Protection Clause ‘is essentially a direction that all persons similarly situated should be treated alike.’ ” Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir.1993) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). To maintain an equal protection claim, a plaintiff typically alleges that he “received treatment different from that received by similarly situated individuals and that the unequal treatment stemmed from a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir.2001); see In re United States, 397 F.3d 274, 284 (5th Cir. 2005); Beeler v. Rounsavall, 328 F.3d 813, 816-17 (5th Cir.2003); Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir.1996). Plaintiffs’ amended complaint alleges that they have been discriminated against based on Lyle’s and Dar’s Creole ethnicity and Club Retro’s mixed-race clientele. Plaintiffs allege four facts that they claim are sufficient to state a claim of racial discrimination: (1) the racial" }, { "docid": "5028994", "title": "", "text": "development, ascertain the nature of the interests at stake so as to determine the adequacy of the remedy provided by the state. It cannot be said that the remedy was adequate or inadequate as a matter of law. Discovery must proceed and facts must be developed. III. Equal Protection Claim A. Legal Principles The Fourteenth Amendment right to Equal Protection of the Law is “essentially a direction that all persons similarly situated be treated alike.” City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Disabled American Veterans v. United States Dep’t of Veterans Affairs, 962 F.2d 136, 141 (2d Cir. 1992). While an equal protection claim may be based upon the allegation that plaintiff was a victim of discrimination due to membership in a protected class, Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995), the right to equal protection also extends to individuals who allege disparate treatment based upon ill will or without rational basis. Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir.2001). To establish an equal protection violation in a zoning context, a plaintiff must show treatment different from other similarly situated individuals. Harlen, 273 F.3d at 499. Similarity is generally a factual issue for a jury. That rule is “not absolute, however, and a claim can be subject to summary dismissal where no rational jury could find similarity.” Harlen, 273 F.3d at 499 n. 2. In addition to a showing of similarity, Plaintiffs must also show either that the disparate treatment: (1) was based upon “impermissible considerations,” including the “malicious or bad faith intent to injure,” or (2) was wholly irrational or arbitrary. Harlen, 273 F.3d at 500, see Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir.2005); see also Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). The latter type of equal protection claim focuses on whether the conduct of the local official was rationally related to his work. B. Sufficiency of the Equal Protection Claim Plaintiffs allege a violation of their equal" }, { "docid": "7858255", "title": "", "text": "do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power”; rather, a plaintiff “must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Id. Plaintiff has cited no law, and the Court has found none, that would support a finding that defendants’ actions in declining plaintiffs application for a special use permit was “shocking to the conscience.” Defendants are therefore entitled to qualified immunity on plaintiffs substantive due process claim 2. Equal Protection The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Keys asserts that defendants’ decision to deny a special use permit discriminated against potential group home residents on the basis of handicap. The Supreme Court has stated that handicapped persons are not a “suspect” class, however, and therefore allegedly discriminatory policies are analyzed under the “rational relationship test.” See City of Cleburne, 473 U.S. at 448-49, 105 S.Ct. 3249. Keys could show discrimination under the rational basis test if it showed that the permit was denied because of unsubstantiated fears or irrational prejudices. See Bangerter, 46 F.3d at 1503 n. 20. At the pleading stage such an assertion could not be conclusively determined. But plaintiffs equal protection claim has a more fundamental problem. Keys does not allege that defendants have issued special use permits for more than eight residents to other group homes. Thus it has failed to allege that defendants have treated it differently than group homes for non-handicapped persons. See generally Lyng v. Castillo, 477 U.S. 635, 638-39, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). Because Keys has failed to allege a violation of equal protection, defendants are entitled to qualified immunity on this claim. 3. Due Process Taking Many intangible rights are protected under procedural" }, { "docid": "2593485", "title": "", "text": "the Planning Board’s discretion would have resulted in the approval of the site plan application. See Clubside, 468 F.3d at 154. The due process claims must therefore be dismissed. 2. Equal Protection Claims The Equal Protection Clause of the Fourteenth Amendment requires the government to treat similarly situated persons alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). A plaintiff who does not claim to be a member of a constitutionally protected class may bring an Equal Protection claim on one of two theories: selective enforcement or “class of one.” See Cobb v. Pozzi, 363 F.3d 89, 109-10 (2d Cir.2004) (distinguishing “selective prosecution” and “class of one” Equal Protection claims). Here, it is unclear which theory Plaintiff is adopting. (Pl.’s Mem. 22-25 (describing elements of both).) The two are treated (at least formally) as separate claims in the Second Circuit. See Casciani v. Nesbitt, 392 Fed.Appx. 887, 888 (2d Cir.2010) (summary order); Cobb, 363 F.3d at 109-10; Gentile v. Nutty, 769 F.Supp.2d 573, 579 (S.D.N.Y.2011) (noting that courts in the Second Circuit “have generally treated selective enforcement and class of one theories as distinct theories with distinct elements of proof.” (internal quotation marks omitted)). To state a claim for selective enforcement, a plaintiff must allege facts supporting a conclusion that 1) he was “treated differently from other similarly situated” comparators, and 2) “that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir.2007) (internal quotation marks omitted); see also Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995) (same). A class-of-one claim requires the plaintiff to allege facts showing that the plaintiff “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir.2010) (quoting Vill. of Willowbrook v. Olech, 528" }, { "docid": "116865", "title": "", "text": "No. 112.) The Fourteenth Amendment prohibits state action which “den[ies] to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. For the following reasons, the Jury’s verdict cannot stand as a matter of law. The Equal Protection Clause of the Fourteenth Amendment protects a person or a corporation against intentional and arbitrary discrimination in the enforcement of a law, whether occasioned by express terms of a statute or by improper execution by government officials. Kaplan v. Chertoff, 481 F.Supp.2d 370, 392 (E.D.Pa.2007). The Equal Protection Clause “ ‘does not forbid all classifications’ but ‘simply keeps governmental decision-makers from treating differently persons who are in all relevant respects alike.’ ” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 109 (3d Cir.2011) (Fisher, J., concurring and dissenting). In this case, the type of equal protection claim asserted by MFS is known as a “class-of-one” equal protection claim. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). To establish a claim for a violation of the Equal Protection Clause based on a class-of-one theory, a plaintiff must demonstrate that: 1) it “has been intentionally treated differently from others similarly situated,” and 2) “there is no rational basis for the difference in treatment.” Id. These challenges fail when “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); see also Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir.2008) (explaining class-of-one theory). i. Similarly Situated and Intentional Treatment The first step in an equal protection analysis is to ascertain whether the plaintiffs were treated differently than similarly situated entities. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 394 (3d Cir.2010). “Persons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183," }, { "docid": "5269909", "title": "", "text": "plan and to comply with federal law. Those reasonable factors amply support the County’s decision. B. Equal Protection Plaintiffs also argue that their terminations violated the Equal Protection Clause of the Fourteenth Amendment, and they seek relief under 42 U.S.C. § 1983. Plaintiffs’ equal protection argument fails for essentially the same reason that their McDonnell Douglas burden-shifting argument fails: they have not identified a suitable comparator group. See Whitaker ex rel. Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, 1050 (7th Cir. 2017) (“The Equal Protection Clause of the Fourteenth Amendment ‘is essentially a direction that all persons similarly situated should be treated alike.’ ”) (citation omitted); Alston v. City of Madison, 853 F.3d 901, 906 (7th Cir. 2017) (“To prove discriminatory effect, [plaintiff] must show that he was a member of a protected class and that he was treated differently from a similarly situated member of an unprotected class.”). Even if plaintiffs could surmount that hurdle, the Equal Protection Clause subjects age-based distinctions to rational-basis review, the most deferential form of judicial scrutiny. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (“The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn ... is rationally related to a legitimate state interest.... We have declined ... to extend heightened review to differential treatment based on age[.]”); Levin v. Madigan, 692 F.3d 607, 619 (7th Cir. 2012) (same). The County chose to terminate a group of at-will part-time employees whose continued employment would have imperiled the County’s already fragile financial situation or jeopardized an insurance plan that benefited plaintiffs and many other retirees. The County’s choice preserved plaintiffs’ eligibility for the supplemental insurance under the Aetna plan. That choice was rational; the Constitution requires nothing more. AFFIRMED. .\" At oral argument, we asked the parties to explain whether the County’s health insurance arrangement was legitimate under federal law as it existed prior to the Affordable Care Act, and if so, the statutory or regulatory support for" }, { "docid": "731660", "title": "", "text": "at issue, the Court declines to speculate as to the County’s interest in avoiding additional procedural requirements. As such, this Court finds that the existing grievance procedures provided all the process that was due to plaintiffs. Accordingly, plaintiffs’ “personal disappointment” with the outcome of those procedures “makes [them] no less binding” upon plaintiff. Morris, 196 F.3d at 115. Accordingly, plaintiffs’ due process claims are dismissed in their entirety. 5. Equal Protection Claims ' In a section of the complaint titled “Allegations Regarding Equal Protection Claims,” plaintiffs allege that defendants lacked a “sufficiently compelling state interest to justify [the] disparity in treatment of similarly situated individuals.” (Comply 51.) The Court will construe this allegation as an equal protection claim arising from the critical event that underlines the complaint — the failure to pay plaintiffs the compensation set forth in the CBA. Defendants argue that the complaint does not state such a claim because plaintiffs failed to allege that they have been treated differently than the other PERB II employees. The Equal Protection Clause of the Fourteenth Amendment is “essentially a direction that all persons similarly situated be treated alike.” Latrieste Restaurant v. Village of Port Chester, 188 F.3d 65, 69 (2d Cir.1999) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). To state a claim for denial of equal protection based on selective enforcement of the law, plaintiffs must allege that (1) they were selectively treated, as compared with others similarly situated; and (2) that such selective treatment was based on impermissible considerations, such as an intent to inhibit or punish the exercise of constitutional rights. See id.; see also Birmingham v. Ogden, 70 F.Supp.2d 353, 372 (S.D.N.Y.1999) (finding that the complaint stated an equal protection claim where it alleged selective treatment based on plaintiffs exercise of protected speech); Burns v. Cook, 458 F.Supp.2d 29, 42-43 (N.D.N.Y.2006) (same). Drawing all reasonable inferences in favor of the nonmovant, the Court finds that the complaint states a claim for an equal protection violation. First, taken as a whole, the complaint states that" }, { "docid": "11124198", "title": "", "text": "based on the public trust doctrine is of no import. Because the Town never deprived the Owners of any property interest, their procedural due process right was not violated. The district court therefore properly granted summary judgment to the Town on this claim. C. We next address the Owners’ equal protection argument. The Owners argue that the Town violated the Equal Protection Clause when it declared their cottages nuisanees because 14 other cottages that were in the public trust area under the Town’s definition were not declared nuisances. We disagree. The Equal Protection Clause of the Fourteenth Amendment provides, “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. This clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). An equal protection claim involves two basic analytical steps. First, a plaintiff must “demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful [government decision].” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2001). Second, if a plaintiff has met this burden, then “the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” ■ Morrison, 239 F.3d at 654. The level of scrutiny depends on the type of classification. We assume without deciding that the Owners can satisfy the requirement that they are similarly situated to the owners of the other 14 cottages. Despite this assumption, the Owners’ equal protection claim fails. Because the Town’s decision to classify some of these cottages as nui sanees but not others does not involve a suspect or quasi-suspect classification, we must uphold the Town’s decision unless the Owners can prove that the decision fails rational basis review — that is, that no rational relationship exists between the government action and a legitimate government purpose. See F.C.C. v. Beach Commc’ns, Inc., 508" }, { "docid": "2518701", "title": "", "text": "to free speech and free association. B. Equal Protection claim In their allegation of unconstitutional unequal treatment, Plaintiffs state that Defendants’ actions towards them “were carried out arbitrarily, capriciously, in spite, ill will [sic] and with a malignant animosity,” and that Plaintiffs “were singled out and not treated like other similarly situated businesses in Angel Fire.” (First Amended Complaint at ¶ 59.) 1. Whether Plaintiffs’ allegations establish that Hasford violated their Equal Protection rights The constitutional guarantees of equal protection are violated when the government treats one individual differently from another who is similarly situated. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Although Plaintiffs here have not alleged either that they are members of a constitutionally protected class or that any of their fundamental rights have been violated, viable equal protection claims may be brought by a “ ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (citations omitted); see also Buckley Constr., Inc. v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d 853, 859 (10th Cir.1991) (citing Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944)) (equal protection clause may be invoked by individual not claiming to be member of any class of people, where plaintiff alleges “an element of intentional or purposeful discrimination”). The Tenth Circuit has held that, to prevail on such a claim, a plaintiff must show (a) “that the action taken by the state, whether in the form of prosecution or otherwise, was a spiteful effort to get [plaintiff] for reasons wholly unrelated to any legitimate state objective,” and (b) that the plaintiff “was treated differently than another who is similarly situated.” Bartell v. Aurora Pub. Sch., 263 F.3d 1143, 1149 (10th Cir.2001) (quotations and citations omitted). a. Whether Hasford’s actions were “a spiteful effort” at targeting Plaintiffs for reasons" } ]

[ { "docid": "5914061", "title": "", "text": "Drugs Appellant’s first challenge is to the sufficiency of the evidence to sustain his conviction for possession of cocaine with intent to distribute. Possession, of course, can be either actual or constructive. Constructive possession requires evidence supporting the conclusion that the defendant had the ability to exercise knowing “dominion and control” over the items in question. United States v. Hernandez, 780 F.2d 113, 116 (D.C.Cir.1986). Mere. proximity to the item at the time of seizure is not enough; but proximity coupled with “evidence of some other factor — including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise” is enough to sustain a guilty verdict. United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990). A jury is entitled to infer that a person exercises constructive possession over items found in his home. United States v. Jenkins, 928 F.2d 1175, 1179 (D.C.Cir.1991). Thus, if there was sufficient evidence from which a juror could infer that Morris lived in the apartment where he was arrested, the jury could infer that he constructively possessed the drugs. The jury had the following evidence that Morris lived in the apartment: First, two officers testified that Morris said he lived there. Although Morris himself testified to the contrary, the jurors were permitted to credit the testimony of the officers. Jenkins, 928 F.2d at 1178. Moreover, Morris himself may have given their testimony extra credibility by his own contradictory information about where he did live at the time of the arrest. Second, Morris admitted that the two birthday cards found in the bedroom were his. That the cards were found inside the dresser drawer in another part of the house, rather than, say, left on a coffee table beside the defendant, strengthened the inference that Morris occupied the apartment on more than a drop-in basis. In United States v. Williams, 952 F.2d 418 (D.C.Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 148, 121 L.Ed.2d 99, (1992), for example, this court found it relevant that defendant’s possessions were found “not in the living room where [he]" } ]

[ { "docid": "6752965", "title": "", "text": "EBEL, Circuit Judge. John Lee Haney was convicted of possessing two maehineguns in violation of 18 U.S.C. § 922(o). On appeal, he asserts that § 922(o) violates the Second Amendment and the Commerce Clause. Both arguments are foreclosed by controlling Tenth Circuit precedent. See United States v. Baer, 235 F.3d 561, 564 (10th Cir.2000) (Second Amendment); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) (Commerce Clause). BACKGROUND The facts of this case are essentially undisputed. John Lee Haney walked into a police station, engaged an officer in conversation, and told him that he owned semiautomatic and fully automatic guns. He stated that they were not licensed and that the federal government lacks authority to require him to get a license. Through a combination of Haney’s consent and a warrant, the authorities found two fully automatic guns in Haney’s car and house. Haney also had literature on how to convert a semiautomatic gun to a fully automatic gun. Haney had converted one of the guns himself and had constructed the other out of parts. He admitted possessing them. Section 922(o) of Title 18 of the United States Code provides, (1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection does not apply with respect to— (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before [May 19,1986]. A “machinegun” is, among other things, “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b); see also 18 U.S.C. § 921(23) (adopting this definition). Both of Haney’s guns are ma-chineguns. Haney was indicted for possessing two maehineguns in violation of § 922(o). He proceeded to a jury trial, was found guilty, and was sentenced" }, { "docid": "23199442", "title": "", "text": "determine that Wettstain and Stewart were involved in a conspiracy to possess with the intent to distribute 500 grams or more of a mixture containing methamphetamine between February 2004 and February 2007. Accordingly, we affirm their convictions on Count I. Count IV Wettstain and Stewart also challenge the sufficiency of the evidence to support their convictions on Count IV, specifically, that on or about January 11, 2007, Stewart, Wettstain, and Higdon, aided and abetted by each other, knowingly and intentionally possessed with the intent to distribute an unspecified amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1). To demonstrate possession with the intent to distribute a controlled substance under § 841(a)(1), the government must prove, beyond a reasonable doubt, that: (1) the defendants knowingly, (2) possessed a controlled substance, (3) with the intent to distribute. United States v. Coffee, 434 F.3d 887, 897 (6th Cir.2006). Higdon’s testimony established that Stewart arranged for Wettstain and Higdon to pick up eight ounces of methamphetamine on January 11, 2007, and that they located the methamphetamine based on Stewart’s instructions. The government can base a conviction under § 841(a)(1) upon a showing of either actual or constructive possession. See United States v. Hill, 142 F.3d 305, 312 (6th Cir.), cert. denied, 525 U.S. 898, 119 S.Ct. 225, 142 L.Ed.2d 185 (1998). “Constructive possession requires evidence supporting the conclusion that the defendant had the ability to exercise knowing ‘dominion and control’ over the items in question.” United States v. Morris, 977 F.2d 617, 619 (D.C.Cir.1992) (internal citation omitted).... A jury may also find the intent to distribute drugs from the large quantity involved. See, e.g., United States v. Faymore, 736 F.2d 328, 333 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984). United States v. Perkins, No. 98-1640, 1999 WL 777537, at *2 (6th Cir. Sept.16, 1999) (unpublished). Accordingly, the fact that Stewart was not physically present at the January 11, 2007, transaction is of no moment. The jury presumptively credited Higdon’s testimony that he witnessed Wettstain receive a phone call from Stewart, in which Stewart told Wettstain to" }, { "docid": "22090969", "title": "", "text": "any firearm or ammunition....” 18 U.S.C.A. § 922(g)(1) (West Supp.1999). To convict under § 922(g)(1), the government must prove that (1) the defendant had a previous felony conviction; (2) the defendant possessed a firearm; and (3) that the firearm traveled in or affected interstate commerce. See United States v. Moreno, 933 F.2d 362, 372 n. 1 (6th Cir.1991). While Defendant does not challenge that he was a felon at the time of his arrest or that the firearms identified by the government traveled in interstate commerce, Defendant argues that the government failed to adduce sufficient evidence that he possessed the firearm to support a conviction under Count 9 of the indictment. We disagree. The government may prove possession under § 922(g)(1) by proving constructive possession, which exists “when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973). Moreover, the government can prove a defendant’s control over firearms by showing that he has dominion over the premises in which the firearms are located. See United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.1998) (citing United States v. Clemis, 11 F.3d 597, 601 (6th Cir.1993)). Here, the evidence is overwhelming that Defendant possessed control over the firearms which form the basis of the § 922 charge. Agents seized a rifle, the Colt Python, and ammunition for the rifle from Defendant’s garage, and seized a loaded 9mm pistol from the dresser by Defendant’s bed. As Defendant has not argued that he exercised no control or dominion over these locations, we find that, taken in the light most favorable to the government, sufficient evidence existed for a rational factfin-der to infer that Defendant possessed firearms in violation of § 922(g)(1). 4. Obstruction of Justice Conviction The federal obstruction of justice statute criminalizes one who “by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.... ” 18 U.S.C.A." }, { "docid": "17871118", "title": "", "text": "the light most favorable to the government ... could have found guilt beyond a reasonable doubt.” Villarreal Gorro v. United States, 516 F.2d 137, 140 (1st Cir.1975) (citations omitted). Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Canessa, 534 F.2d 402, 403 (1st Cir.1976). 18 U.S.C. § 922(h)(1) in pertinent part states: (h) It shall be unlawful for any person— (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to receive any firearm or ammunition which has been shipped or transported in interstate commerce. Defendant contends that the evidence is insufficient to establish the element of receipt of a firearm by him. To prove receipt it is not necessary to show that the defendant actually received the pistol since “receipt under 18 U.S.C. § 922(h)(1) may be shown circumstantially by proving possession .... ” United States v. Craven, 478 F.2d 1329, 1337 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973), and possession can be either actual or constructive, exclusive or joint. United States v. Flores, 679 F.2d 173, 177 (9th Cir.1982); United States v. Alverson, 666 F.2d 341, 345 (9th Cir.1982). “Constructive possession exists when a person ... knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Craven, 478 F.2d at 1333. See also United States v. Birmley, 529 F.2d 103, 107 (6th Cir.1976); United States v. Daniels, 527 F.2d 1147, 1150 (6th Cir.1975). While there may be some question as to the sufficiency of the evidence to warrant a jury finding actual possession beyond a reasonable doubt, there was clearly sufficient evidence for a jury finding of constructive possession. It is true, as defendant argues, that “[m]erely showing that appellant was a passenger in the car and in proximity to the [item found] is, without more, insufficient to support a finding of possession.” United States v. Bethea, 442" }, { "docid": "23332080", "title": "", "text": "No such evidence exists here. As noted in the panel’s per curiam opinion, Gordon’s accusation that Arnold had a gun when he threatened her does not address whether Arnold had direct physical control over the relevant gun (the one found in the car) at the relevant time (when officers arrested him). Gordon’s testimony is insufficient to sustain a conviction because conviction requires proof that Arnold “possess[ed] the firearm and ammunition specified in the indictment.” United States v. Schreane, 331 F.3d 548, 560 (6th Cir.2003) (emphasis added). Because the prosecution presented no evidence showing that Arnold had physical control over the recovered firearm when it was recovered or immediately before, no rational trier of fact could have found that the government proved actual possession beyond a reasonable doubt. Likewise, the government has not provided sufficient evidence for a reasonable jury to conclude that Arnold constructively possessed the gun found in the car. “Constructive possession exists when a person does not have actual possession but'instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” Craven, 478 F.2d at 1333. One way the government may prove the defendant had the power to exercise dominion over a firearm is through evidence that he had dominion or control over the premises where the firearm was located. United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.1998), cert, denied, 525 U.S. 1166, 119 S.Ct. 1085, 143 L.Ed.2d 86 (1999). However, a defendant’s presence where a firearm was found, without more, is insufficient to establish “the requisite knowledge, power, or intention to exercise control” over the firearm. United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976). Our previous decisions rejecting sufficiency challenges by defendants found in cars containing guns are all readily distinguishable, as in each case, there was sufficient evidence tying the defendant to a particular gun found in the car. For instance, in United States v. Murphy, 107 F.3d 1199 (6th Cir.1997), we noted that a defendant found in a car with a gun could not mount a" }, { "docid": "7777484", "title": "", "text": "by competent evidence of the defendant’s own conduct. See United States v. Bradsby, 628 F.2d 901 (5th Cir. 1980); United States v. Williams, 613 F.2d 560, 562 (5th Cir. 1980). We have reviewed defendants’ remaining arguments and find them frivolous. The convictions are accordingly AFFIRMED IN PART and REVERSED IN PART. . Defendants were convicted of possessing firearms that had not been registered to them in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5861(d) and 5841 (Counts 3, 5, 8 and 10); transferring and making firearms without having paid the transfer and making taxes as prescribed by 26 U.S.C. § 5861(e) in conjunction with 26 U.S.C. §§ 5811 and 5821 (Counts 4, 6, 7, 9 and 11); possessing firearms not identified by serial number in contravention to 26 U.S.C. § 5842 (Count 12); possessing a firearm that had its serial number obliterated in violation of 26 U.S.C. §§ 5861(h) and 5871 (Count 13); and conspiring to commit the preceding offenses. Johnson and Stout were also charged with engaging in a business as dealers in firearms without having paid the occupational tax required by 26 U.S.C. § 5801 and without having registered in accordance with 26 U.S.C. § 5802 (Count 2). This count, however, was dismissed prior to the submission of the case to the jury. . A fully automatic weapon or machine gun is “any weapon which shoots, is designed to shoot, or can readily be restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b). . According to the testimony at trial partial conversion kits may be lawfully sold because they do not include parts necessary to modify a semi-automatic weapon to fire automatically. A complete conversion kit or a conversion kit including a receiver for a machine gun is itself a firearm subject to the requirements of Title 26. 26 U.S.C. § 5845(b). . The documents were certified pursuant to Fed.R.Evid. 902(4). Government Exhibit No. 57 dealt with a search of the firearms registry for “any silencers or any firearms”" }, { "docid": "10510572", "title": "", "text": "approximately 100 grams of methamphetamine, drug notes in Mr. Tenerelli’s handwriting, a digital scale, drug packaging materials, a 9mm semi-automatic pistol, and 9mm ammunition. Trial testimony established that a loaded 9mm firearm and drugs were found in close proximity to Mr. Tenerelli when officers entered his residence on August 24, 2006. “[P]ossession may be either actual or constructive,” and “constructive possession exists when a person has ownership, dominion, or actual control over the contraband.” United States v. Moore, 212 F.3d 441, 445 (8th Cir.2000) (quoting United States v. Anderson, 78 F.3d 420, 422 (8th Cir.1996)). Like controlled substances, possession of a firearm can be actual or constructive. United States v. Piwowar, 492 F.3d 953, 955 (8th Cir.2007). Constructive possession “requires knowledge of an object, the ability to control it, and the intent to do so.” Id. (citing United States v. Cuevas-Arrendondo, 469 F.3d 712, 715 (8th Cir.2006)). There is substantial evidence to support the jury’s findings that Mr. Tenerelli was in possession of the firearm, ammunition, and methamphetamine. At the time the search warrant was executed at his residence, Mr. Tenerelli was found in the living room in close proximity to the firearm and methamphetamine. Seized items at the residence, including a cable bill addressed to Mr. Tenerelli and drug notes in his handwriting, indicate that he was in control of the premises. The box found at Mr. Tenerelli’s parents’ home containing Mr. Tenerelli’s driver’s license and ammunition for the firearm further evidences Mr. Tenerelli’s possession of the firearm. Additionally, a cooperating witness testified that he had seen Mr. Tenerelli in actual possession of both methamphetamine and the same firearm. The witness testified that he purchased drugs from Mr. Tenerelli for resale at both Mr. Tenerelli’s residence and at Mr. Tenerelli’s parents’ home. Text messages from Mr. Tenerelli to his brother corroborated the witness’ testimony and showed Mr. Tenerelli and his brother working to collect a drug debt from the witness. Drug notes evidencing specific drug purchases by the cooperating witness were also obtained from Mr. Tenerelli’s residence. We conclude that any error in admitting the videotapes was harmless beyond" }, { "docid": "21442743", "title": "", "text": "Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The government may establish possession by actual or constructive possession of a firearm. United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). “[T]he line of demarcation between ‘actual’ and ‘constructive’ possession is not analytically crisp'.” Walker, 734 F.3d at 456. “Actual possession requires that a defendant have immediate possession or control of the firearm, whereas constructivé possession exists when the defendant ‘does not have possession but instead knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others.’ ” Campbell, 549 F.3d at 374 (citation omitted). “The element of possession can be proven by either direct or circumstantial evidence. Circumstantial evidence alone is sufficient to sustain a conviction.” United States v. Garcia, 758 F.3d 714, 718 (6th Cir.2014) (citations omitted). Here, and at a minimum, defendant constructively possessed a firearm. Fly observed a firearm “sticking ... out” from under the. driver’s seat of the car defendant was driving. As defendant points out, “[presence alone near a gun ... does not show the requisite knowledge, power, or intention to exercise control over the gun to prove constructive possession.” United States v. Arnold, 486 F.3d 177, 183 (6th Cir.2007) (en.banc); accord United States v. Newsom, 452 F.3d 593, 609 (6th Cir.2006). “But that is not what we have here. Here we have other‘incriminating evidence, coupled with presence, that serves to tip the scale in favor of sufficiency.” Arnold, 486 F.3d at 183 (alterations, citations, and brackets omitted). “Other incriminating evidence” — a “connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may suffice.” Campbell, 549 F.3d at 374 (citations and internal quotation marks omitted). A defendant’s statement of ownership is especially incriminating. See, e.g., Newsom, 452 F.3d at 609-10 (statement by defendant that he “had that gun” found within an arm’s reach under his seat, among others, constituted sufficient evidence of possession); United States v. Thomas, 497 F.2d 1149, 1150 (6th Cir.1974) (per curiam) (“[I]t" }, { "docid": "23411884", "title": "", "text": "§ 5845(b) (1976)? Second, did the Government prove defendant’s constructive possession of the other three weapons seized in a search of the trailer home alleged to be defendant’s residence? In reviewing the sufficiency of the evidence, an appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh évi dence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original) (citation omitted). Accord, United States v. Buras, 633 F.2d 1356, 1359 (9th Cir. 1980); United States v. Kipp, 624 F.2d 84, 84 (9th Cir. 1980) (per curiam). A. The Thompson .45 Caliber Weapon Section 5845(b) of Title 26 defines a “machine gun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” Alverson argues that the Government offered insufficient proof that the Thompson .45 caliber weapon fit this definition. No one disputes that the Thompson, in the condition in which it was left at the gun store, did not fire “more than one shot ... by a single function of the trigger.” The Government contends, however, that its evidence proves either that the gun could be “readily restored to shoot automatically” or that the gun did function automatically when Alverson brought it to the gun store and before he replaced the disconnect. The following evidence was adduced: (1) when defendant first brought the weapon to the store, he stated that he and his son had just been firing it and that “while his son was shooting it he held down the trigger too long.” This statement makes sense only in reference to a weapon that fires more than one shot per function of" }, { "docid": "20375619", "title": "", "text": "the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir.2007). “[Cjircumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt.” United States v. Tarwater, 308 F.3d 494, 504 (6th Cir.2002). The element at issue here is possession, since Jenkins argues only that the government failed to prove that he “had custody and control” of the guns and drugs. Def. Br. 13. Possession may be actual or constructive, and need not be exclusive. United States v. Hadley, 431 F.3d 484, 507 (6th Cir.2005). That a defendant “knowingly has the power and the intention at a given time to exercise dominion and control over an object” is sufficient to establish constructive possession. Id. Here, Jenkins was present at the residence on the day the drugs and guns were found; he had unlimited access to the house; he lived there part time; he repeatedly restored electrical service there; his parents testified that he stored personal property there; and a gun, scales, and baggies of marijuana were found with Jenkins’s drivers license and other personal papers in the house’s only bedroom. This evidence easily permitted the jury to find that Jenkins had the power and intention to exercise control over the guns and drugs in the house. We therefore reject this argument. B. Jenkins challenges two of the district court’s evidentiary rulings. One can be handled summarily. Jenkins argues that the district court erred in allowing Special Agent DeArmitt to testify as an expert about drug-dealer customs without first obtaining any “specific information on DeArmitt’s basis for knowledge” about them. Def. Br. 11. But DeArmitt testified that he had surveilled drug transactions 300-400 times, participated in the execution of search warrants in 50-100 drug cases, and been involved in the arrests of several hundred suspected drug dealers. We think that testimony described an ample basis of knowledge for the opinions offered. So we reject this argument. Jenkins’s other argument is problematic. He" }, { "docid": "23411886", "title": "", "text": "the trigger. (2) In the presence of gun store employees, defendant removed the disconnect from the gun and replaced it because “you don’t want [the Thompson] like this,” or “it was fixed.” The second disconnect differed from the first in that it “had a smaller hump on it.” A Government firearms expert testified that the function of a disconnect was to prevent the weapon from firing fully automatically. He also testified that the Thompson “probably” would fire fully automatically if it had a disconnect on which the hump had been “filed down.” Finally, the Government’s expert testified that a “shaved off” disconnect, in conjunction with the polished interi- or surfaces he actually observed on the Thompson, “would convert it into fully automatic.” (3) Defendant had the knowledge to convert semi-automatic weapons to fully automatic, and had done so on previous occasions. (4) A gun store employee testified that appellant gave, as a reason for having his wife sign for the Thompson, the fact that “he had spent 18 months in Lompoc for possession of a machine gun.” From this evidence, a rational trier of fact could conclude* beyond a reasonable doubt, that the Thompson could be “readily restored to shoot automatically.” B. Constructive Possession of the Other Weapons Possession of firearms in violation of section 5861(d) “need not be [proved by] exclusive actual possession, but may be [proved by] constructive or joint possession.” United States v. Kalama, 549 F.2d 594, 596 (9th Cir.), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977). “ ‘In order to establish constructive possession, the government must produce evidence showing ownership, dominion, or control over the contraband itself or the premises ... in which contraband is concealed.’ . . . [D]ominion and control over [defendant’s] own residence, in which the guns were found, is a sufficient basis for the jury’s inference of constructive possession.” United States v. Smith, 591 F.2d 1105, 1107 (5th Cir. 1979) (quoting United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir. 1974)). The defendant argues that the Government’s evidence fails to show that the residence in which" }, { "docid": "23132864", "title": "", "text": "a scale, a blender, currency, razor blades and packaging materials supported the conclusion that the drugs were possessed for purposes of distribution. A conviction for possessing a controlled substance with intent to distribute can be based upon a showing of actual or constructive possession. United States v. Verners, 53 F.3d 291, 294 (10th Cir.1995). A jury “is entitled to infer that a person exercises constructive possession over items found in his home.” United States v. Morris, 977 F.2d 617, 620 (D.C.Cir.1992). Defendant’s use and occupancy of the third floor premises and his ability to exercise dominion and control over the drugs and paraphernalia recovered from these premises. was sufficiently demonstrated. Defendant’s parents testified that he used the third floor as his living quarters or bedroom. The third floor was secured by a padlock, which members of the task force unlocked at the time of the search by using a key found earlier in the afternoon in defendant’s possession. The third floor contained items of male clothing and a large collection of envelopes, receipts, and other personal papers bearing defendant’s name and address, indicating his use of the premises. Further evidence that defendant constructively possessed the drugs and drug implements recovered from his third floor living quarters was provided by his attempt to disassociate himself from that area by claiming that his bedroom was downstairs, when actually it was his sister’s bedroom and had only female clothing in it. See United States v. Calhoun, 49 F.3d 231, 236 (6th Cir.1995). The jury was entitled to choose from among reasonable constructions of the evidence the drug possession theory they felt was based on the evidence. United States v. Forrest, 17 F.3d 916, 919 (6th Cir.), cert. denied, 511 U.S. 1113, 114 S.Ct. 2115, 128 L.Ed.2d 673 (1994). Based on the evidence presented at trial, a rational trier of fact could conclude beyond a reasonable doubt that defendant knowingly and intentionally possessed with the intent to distribute the controlled substances found in the third floor apartment. The district court is affirmed on this issue. V. Finally, defendant contends the district court erred in" }, { "docid": "20446233", "title": "", "text": "devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Severson, 569 F.3d 683, 688 (7th Cir.2009) (internal quotation marks and citation omitted). In order to sustain a conviction under 18 U.S.C. § 922(g)(1), the government needed to prove Hampton had either actual or constructive possession of the gun. Rogers, 542 F.3d at 202. Actual possession occurs when a defendant “knowingly maintains physical control over an object.” United States v. Stevens, 453 F.3d 963, 965 (7th Cir.2006). A defendant constructively possesses an item if he has the power and the intent to exercise dominion or control over the object, either directly or through others. United States v. Thomas, 321 F.3d 627, 636 (7th Cir.2003). Constructive possession may be sole or joint, see United States v. Morris, 349 F.3d 1009, 1014 (7th Cir.2003), but mere proximity to the object alone is not enough to prove knowledge of the item, see Thomas, 321 F.3d at 636. The government must “establish a nexus between the accused and the contraband, in order to distinguish the accused from a mere bystander.” Quilling, 261 F.3d at 712 (citation omitted). The prosecution may prove actual or constructive possession by direct or circumstantial evidence. See Morris, 349 F.3d at 1014. Hampton argues that the government only proved his mere proximity to the gun. Hampton attacks the witnesses’ testimony because Smith claimed to have seen Hampton with a black gun, while Moore and the indictment stated Hampton’s gun was chrome. Hampton argues that Moore’s testimony was incredible as a matter of law and challenges whether Moore actually saw what he claimed to have seen because he was twenty-two floors above the scene. Hampton asserts that Moore described someone shooting at a building that showed no signs of bullet holes and that officers found bullet holes in the Nissan Murano which was located in the opposite direction from which Moore described seeing the suspect shoot. The government presented sufficient evidence to show both constructive and actual possession of the gun. Police recovered two guns from the Jeep in which Hampton was riding" }, { "docid": "21442744", "title": "", "text": "near a gun ... does not show the requisite knowledge, power, or intention to exercise control over the gun to prove constructive possession.” United States v. Arnold, 486 F.3d 177, 183 (6th Cir.2007) (en.banc); accord United States v. Newsom, 452 F.3d 593, 609 (6th Cir.2006). “But that is not what we have here. Here we have other‘incriminating evidence, coupled with presence, that serves to tip the scale in favor of sufficiency.” Arnold, 486 F.3d at 183 (alterations, citations, and brackets omitted). “Other incriminating evidence” — a “connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may suffice.” Campbell, 549 F.3d at 374 (citations and internal quotation marks omitted). A defendant’s statement of ownership is especially incriminating. See, e.g., Newsom, 452 F.3d at 609-10 (statement by defendant that he “had that gun” found within an arm’s reach under his seat, among others, constituted sufficient evidence of possession); United States v. Thomas, 497 F.2d 1149, 1150 (6th Cir.1974) (per curiam) (“[I]t is not unreasonable to infer Thomas’ possession of the gun from the fact[ ] that he ... call[ed] it ‘my gun.’ ”); United States v. Curruthers, 511 Fed.Appx. 456, 460 (6th Cir.2013) (jailhouse call by defendant stating “they found that shit in the ear” rationally supported an inference that defendant possessed a firearm). Such “other incriminating evidence” takes the form of two jailhouse phone calls, where an individual, using defendant’s calling PIN number, referring to himself by one of defendant’s nicknames, and identified as defendant by two witnesses familiar with his voice, stated that police “pulled [him] over” and “caught [him]” with a gun: “The Smitty” and “my burner.” The government presented evidence that “Smitty” and “burner” are common references to handguns, and that a “Smitty” refers to a Smith & Wesson handgun — the same model gun defendant’s indictment charged him with possessing. This evidence more than adequately constitutes “other incriminating evidence.” Latching onto the fact that the firearm was also in close proximity to the vehicle’s other occupant (and owner), Vichitvongsa contends United" }, { "docid": "17871119", "title": "", "text": "866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973), and possession can be either actual or constructive, exclusive or joint. United States v. Flores, 679 F.2d 173, 177 (9th Cir.1982); United States v. Alverson, 666 F.2d 341, 345 (9th Cir.1982). “Constructive possession exists when a person ... knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Craven, 478 F.2d at 1333. See also United States v. Birmley, 529 F.2d 103, 107 (6th Cir.1976); United States v. Daniels, 527 F.2d 1147, 1150 (6th Cir.1975). While there may be some question as to the sufficiency of the evidence to warrant a jury finding actual possession beyond a reasonable doubt, there was clearly sufficient evidence for a jury finding of constructive possession. It is true, as defendant argues, that “[m]erely showing that appellant was a passenger in the car and in proximity to the [item found] is, without more, insufficient to support a finding of possession.” United States v. Bethea, 442 F.2d 790, 793 (D.C.Cir. 1971). Here, however, the evidence, when viewed in the light most favorable to the government, established that the defendant had constructive possession of the pistol. The pistol was made available to defendant for use as collateral for his towing charge, and it was so used. It matters not that defendant may not have physically handled the pistol. Defendant could have taken actual possession of the pistol at anytime by paying the towing charge. In light of the fact that defendant later inquired about the pistol and told the person who was holding it that he would return for it, it can scarcely be doubted that defendant knew that he could obtain the pistol himself upon payment of the towing bill and intended to do so. Constructive possession was conclusively established. The motion for judgment of acquittal was properly denied. The Jury Instructions The defendant objects on two grounds to the court’s jury instructions either of which, he contends, was reversible error. First, he claims that the court committed error in refusing" }, { "docid": "23606762", "title": "", "text": "contend that there was insufficient evidence to support certain aspects of their convictions. McAn-derson alleges that his possession of two firearms was not proven beyond a reasonable doubt. Hawkins submits that insufficient evidence existed to demonstrate his knowing participation in the overall conspiracy. When reviewing a challenge to the sufficiency of the evidence, we will uphold the jury’s determination if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979) (emphasis in original). As we have stated, “[ojnly when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.” McNeese, 901 F.2d at 600. Neither McAnderson nor Hawkins can overcome this heavy burden. Possession of a firearm may be either actual or constructive. As this court has stated, “[cjonstructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.1990) (construing 18 U.S.C. § 922(g), possession of a firearm by a convicted felon). See also United States v. Taylor, 728 F.2d 864, 868 (7th Cir.1984). Here, the evidence demonstrates McAnder-son’s constructive possession of both the .45-caliber pistol and the 9mm machine gun. McAnderson was one of the El Rukns “generals,” the highest rank under Fort. His taped conversations with Fort indicate that he participated in discussions about murders and other violent acts to impress the Libyans. He was closely familiar with the violent nature of the plan and was one of the central figures who travelled to Libya and Panama to participate in discussions with the Libyan government. The jury could reasonably conclude that he was aware of the violence that had been planned and knew that the weapons in the El Rukns’ possession would be used to commit these acts. McAnderson contends" }, { "docid": "14079564", "title": "", "text": "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We begin with the language of § 922(o)(l), which provides as follows: (1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machine gun. (2) This subsection does not apply with respect to— (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machine gun that was lawfully possessed before the date this subsection takes effect. For purposes of this statute, a machine gun is defined broadly as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b). The term also includes “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled.” Id. One element that the government must prove in order to obtain a conviction under § 922(o)(l) is the defendant’s knowledge: specifically, the government must show that the defendant knew that the weapon had the characteristics that bring it within the statutory definition of a machine gun. See United States v. Ross, 40 F.3d 144, 146 (7th Cir.1994) (defining the mens rea for earlier statutory version of § 922(o)); 18 U.S.C. § 924(a)(2) (requiring “knowing” violation of § 922(o)). This is the point at which Weicherding asserts the government’s proof failed. Weicherding argues that no reasonable jury could have concluded that he knowingly possessed a machine gun when he and McGiffen took possession of the converted AR-15 assault rifle from Lowtharp. He points to testimony at trial that a layperson looking" }, { "docid": "603085", "title": "", "text": "to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We are unpersuaded by Motley’s arguments that no physical evidence — such as a fingerprint— was introduced to link him to the gun found in the car he was driving and that the only evidence linking him to the weapon was his mere presence in the car. Evidence of constructive possession suffices to satisfy the requirement of proof that a defendant possessed a firearm, United States v. Clemis, 11 F.3d 597, 601 (6th Cir.1993), and “[c]ir-cumstantial evidence by itself can support a defendant’s conviction.” United States v. Copeland, 321 F.3d 582, 600 (6th Cir.2003). “Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Kin-caide, 145 F.3d 771, 782 (6th Cir.1998). Motley’s mere proximity to the firearm does not, without more, constitute probative evidence that he was in constructive possession of the weapon. But in this case, the jury had more than Motley’s mere proximity to the weapon to consider. It is undisputed that Motley was driving the car, and proof that a defendant “has dominion over the premises where the firearm is located” contributes to a finding of constructive possession. Clemis, 11 F.3d at 601. Furthermore, the jury heard testimony that when police officers pulled up behind Motley on October 8, 1999, he tried to evade them by turning a comer at high speed, pulling into a stranger’s driveway, exiting the car, and attempting to flee. Because Motley was the driver, the jury was permitted to infer that it was his decision to take evasive action, and the jury could consider such action probative of his possession of the gun. Finally, the jury heard evidence that ... when police officers searched Motley’s bedroom ... they found a holster and ammunition clip matching the pistol" }, { "docid": "18008293", "title": "", "text": "(1976), quoting Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Appellant Morgan makes no allegation that the United States Attorney’s Office involved in this case has “perverted” the purposes of the peremptory challenge by systematic use of the challenge against blacks over a period of time, in order to deny blacks the same right and opportunity to participate in the administration of justice which whites enjoy. United States v. Carter, supra, 528 F.2d at 849. We conclude that the trial court did not abuse its discretion in proceeding with the jury finally selected. It was also error, the appellant alleges, for the trial court to refuse to instruct that the government must prove defendant’s knowledge that he possessed a machinegun as it is defined by the Act. In other words, it is alleged that Morgan must have had actual knowledge that he possessed a weapon which fires automatically. 26 U.S.C.A. § 5861(d) makes it unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” The definition of “firearm,” 26 U.S.C.A. § 5845(a) includes the term “machinegun,” and “machinegun” is specifically defined in the next subsection of the Act: (b) Machinegun. — The term “machine-gun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. * * * In rejecting the appellant’s contention that the government must prove that the defendant had actual knowledge of the weapon’s physical properties as defined by the Act, this court joins several other circuits which have considered the question. Sufficient intent is established if the defendant is shown to have possessed an item “which he knew to be a firearm, within the general meaning of that term.” United States v. Vasquez, 476 F.2d 730, 732 (5th Cir.), cert. denied, 414 U.S. 836, 94 S.Ct. 181, 38 L.Ed.2d 72 (1973). See also United States v. DeBartolo, 482 F.2d 312, 316-17 (1st Cir. 1973). In United" }, { "docid": "10510571", "title": "", "text": "both of the categories, though, for it is inconsequential to the result. Even assuming that Mr. Tenerelli is correct that the seized videotapes were not within the scope of the warrant, their admission was harmless. See Chambers v. Maroney, 399 U.S. 42, 53, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (evidence admitted in violation of the Fourth Amendment is subject to harmless error review); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (“before a federal constitutional error can be held harmless, a court must be able to declare a belief that it was harmless beyond a reasonable doubt”); see also United States v. Timley, 443 F.3d 615, 623 (8th Cir.2006); United States v. Noske, 117 F.3d 1053, 1058 (8th Cir.1997) (“Even if the search violated [the defendant’s] Fourth Amendment rights ... admission of the [evidence] was harmless beyond a reasonable doubt.”). Mr. Tenerelli was convicted for crimes related to possession of drugs and a firearm. The government introduced evidence independent of the videotapes that supports the jury’s verdict, including: approximately 100 grams of methamphetamine, drug notes in Mr. Tenerelli’s handwriting, a digital scale, drug packaging materials, a 9mm semi-automatic pistol, and 9mm ammunition. Trial testimony established that a loaded 9mm firearm and drugs were found in close proximity to Mr. Tenerelli when officers entered his residence on August 24, 2006. “[P]ossession may be either actual or constructive,” and “constructive possession exists when a person has ownership, dominion, or actual control over the contraband.” United States v. Moore, 212 F.3d 441, 445 (8th Cir.2000) (quoting United States v. Anderson, 78 F.3d 420, 422 (8th Cir.1996)). Like controlled substances, possession of a firearm can be actual or constructive. United States v. Piwowar, 492 F.3d 953, 955 (8th Cir.2007). Constructive possession “requires knowledge of an object, the ability to control it, and the intent to do so.” Id. (citing United States v. Cuevas-Arrendondo, 469 F.3d 712, 715 (8th Cir.2006)). There is substantial evidence to support the jury’s findings that Mr. Tenerelli was in possession of the firearm, ammunition, and methamphetamine. At the time the search warrant was" } ]

[ { "docid": "23405934", "title": "", "text": "the Committee satisfied the first step of the Wildbur test by making the legally correct interpretation of the Plan, we never reach the second, abuse of discretion step. A determination that a plan administrator’s interpretation is legally correct pretermits the possibility of abuse of discretion. C. Breach of Fiduciary Duty Tolson’s efforts to justify assertion of breach of a fiduciary duty claim against the Plans by distinguishing such a claim from his claims for coverage and benefits claims are woefully unavailing. If they are distinctions at all, they are without differences. This was succinctly and correctly explained by the district court: Because Tolson has adequate redress for disavowed claims through his right to bring suit pursuant to section 1132(a)(1), he has no claim for breach of fiduciary duty under section 1132(a)(3). Section 1132(a)(2) allows a beneficiary to bring a standard breach of fiduciary duty suit for the benefit of the subject plan. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). In Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), the Supreme Court interpreted section 1132(a)(3) to allow plaintiffs to sue for breach of fiduciary duty for personal recovery when no other appropriate equitable relief is available. Because Tolson has adequate relief available for the alleged improper denial of benefits through his right to sue the Plans directly under section 1132(a)(1), relief through the application of Section 1132(a)(3) would be inappropriate. Unlike the plaintiffs in Varity, Tolson was the beneficiary of two viable plans whom [sic] he had standing to sue and did sue. Further, both Plans are viable and before the Court. Because this relief was available and, indeed, utilized, it would be inappropriate for the Court to fashion any further equitable relief under Section 1132(a)(3). The simple fact that Tolson did not prevail on his claim under section lÍ32(a)(l) does not make his alternative claim under section 1132(a)(3) viable. No purpose would be served by discussing this issue further. The district court’s analy sis is accurate and clear, so we adopt it as our" } ]

[ { "docid": "20765529", "title": "", "text": "states that the Committee “has delegated to the Appeals Committee the absolute discretionary authority and power to review and decide all claim appeals under the Plan.” There is sufficient information in the complaint and related documents to support the claim against the Appeals Committee for denial of benefits asserted in Count Four. D. Counts One through Three as Distinct Claims Defendants argue that plaintiff cannot pursue the claim for breach of fiduciary duty in Count One and the estoppel claims in Counts Two and Three because she has asserted a claim for benefits in Count Four. In Varity Corp., the Supreme Court noted that “ERISA specifically provides a remedy for breaches of fiduciary duty with respect to interpretation of plan documents and the payment of claims” through a cause of action under § 1132(a)(1)(B). 516 U.S. at 512, 116 S.Ct. 1065. The remedy for “other breaches of other sorts of fiduciary obligation” may be sought under the “catchall” provision in § 1132(a)(3). Id. The Supreme Court concluded that “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief would normally not be appropriate.” Id., 516 U.S at 515, 116 S.Ct. 1065. The Sixth Circuit in Wilkins v. Baptist Healthcare Sys. Inc., 150 F.3d 609 (6th Cir.1998), interpreted Varity Corp. as limiting “the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other remedies.” 150 F.3d at 615; see also Tackett v. M & G Polymers, USA LLC, 561 F.3d 478, 491 (6th Cir.2009) (relief under § 1132(a)(3) not appropriate where plaintiff merely “repackages” a § 1132(a)(1)(B) benefits claim). Subsequently, in Hill v. Blue Cross and Blue Shield of Mich., 409 F.3d 710, 718 (6th Cir.2005), the Sixth Circuit recognized that there are some circumstances under which an ERISA plaintiff may simultaneously bring claims under both § 1132(a)(1)(B) and § 1132(a)(3). The court held that where an award of individual benefits pursuant to § 1132(a)(1)(B) could not provide an adequate remedy for the alleged injury to the plaintiffs caused by a" }, { "docid": "11707465", "title": "", "text": "action would encourage parties to avoid the implications of section 502(a)(1)(B) by artful pleading.” Coyne & Delany Co. v. Blue Cross & Blue Shield of Va., Inc., 102 F.3d 712, 714 (4th Cir.1996). D. Finally, this case is not the exceptional one accommodated in Varity’s observation that adequate legal relief would “normally” make equitable relief inappropriate. 516 U.S. at 515, 116 S.Ct. 1065. The allegations made by Korotynska are routinely taken up in appeals of benefits denials, and they do not constitute special circumstances for which equitable relief is uniquely appropriate. Indeed, if equitable relief were available here, “every wrongful denial of benefits could be characterized as a breach of fiduciary duty.” Coyne, 102 F.3d at 714. Plaintiffs approach would promote § 1132(a)(3) from “safety net” to first line of attack, an outcome at odds with both the plain language of § 1132(a)(1)(B) and the statutory structure of § 1132. See Varity, 516 U.S. at 512, 116 S.Ct. 1065. An approach whereby § 1132(a)(3) review supplanted § 1132(a)(1)(B) review upon a mere allegation of improper claims procedures would make equitable relief the norm rather than the exception, an outcome the Supreme Court in Varity expressly disavowed. Nothing we have said undermines the ability of plan participants to seek recoveries to the benefit plan under § 1132(a)(2) for breaches of fiduciary duty. See 29 U.S.C. §§ 1109, 1132(a)(2); Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 140, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985); see also LaRue v. DeWolff, Boberg & Assocs., Inc., 450 F.3d 570, 573 (4th Cir.2006); Coyne, 102 F.3d at 714. See also 29 U.S.C. § 1132(a)(5) (enabling the Secretary to “enjoin any act or practice which violates any provision of this title,” as well as to “obtain other appropriate equitable relief’); see, e.g., Chao v. Malkani, 452 F.3d 290, 292 (4th Cir.2006). Similarly, our holding preserves the true purpose of § 1132(a)(3); to authorize individual equitable relief, not where plan administrators have made a mistake on an individual benefits determination, but where, as in Varity, ERISA’s other provisions do not afford adequate relief. 516 U.S." }, { "docid": "11707461", "title": "", "text": "under § 1132(a)(1)(B) may not proceed with a claim under § 1132(a)(3). See, e.g., Antolik v. Saks, Inc., 463 F.3d 796, 803 (8th Cir.2006); Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284, 1287-88 (11th Cir.2003); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610-11 (5th Cir.1998); Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 615-16 (6th Cir.1998); Forsyth v. Humana, Inc., 114 F.3d 1467, 1474-75 (9th Cir.1997); Wald v. Sw. Bell Corp. Customcare Medical Plan, 83 F.3d 1002, 1006 (8th Cir.1996). These courts have not allowed claimants to proceed with § 1132(a)(3) claims where relief was potentially available to them under § 1132(a)(1)(B), because, in Varity, “[t]he Supreme Court clearly limited the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other remedies.” Wilkins, 150 F.3d at 615. A plaintiff whose injury consists of a denial of benefits “has adequate relief available for the alleged improper denial of benefits through his right to sue [the benefit plan] directly under section 1132(a)(1),” and thus “relief through the application of Section 1132(a)(3) would be inappropriate.” Tolson, 141 F.3d at 610. To allow a claim under § 1132(a)(3) would permit “ERISA claimants to simply characterize a denial of benefits as a breach of fiduciary duty, a result which the Supreme Court expressly rejected.” Wilkins, 150 F.3d at 616. C. We join our sister circuits and hold that § 1132(a)(1)(B) affords the plaintiff adequate relief for her benefits claim, and a cause of action under § 1132(a)(3) is thus not appropriate. Plaintiff insists that § 1132(a)(1)(B) is inadequate because, “[u]nless MetLife is required to answer for its actions under [§ 1132(a)(3) ], its illegal practices will remain free from scrutiny.” But this is not the case. This court has held that review of a benefits determination under § 1132(a)(1)(B) should consider, among other factors, “whether the deci-sionmaking process was reasoned and principled,” “whether the decision was consistent with the procedural and substantive requirements of ERISA,” and “the fiduciary’s motives and any conflict of interest it may have.” Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare" }, { "docid": "11707454", "title": "", "text": "personnel into denying or terminating legitimate claims. Under § 1132(a)(3), Korotynska seeks reform of “the systemic improper and illegal claims handling practices that [MetLife] uses to deny her and other ERISA beneficiaries a full and fair review of their claims for disability benefits and a full and fair review of claims (including Ms. Korotyns-ka’s) that have been denied or terminated,” as well as other appropriate equitable relief. MetLife filed a Rule 12(c) motion for judgment on the pleadings, arguing that Korotynska lacked standing to bring the action and that Korotynska was not entitled to bring a claim for equitable relief under § 1132(a)(3), because adequate relief was available to her through § 1132(a)(1)(B). The district court held that, although Korotynska had standing, under Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), equitable relief was only available for injuries not adequately redressed elsewhere in ERISA’s statutory scheme. Because Ko-rotynska “ha[d] available to her the alternative remedy of bringing an action under [§ 1132(a)(1)(B)],” her action under § 1132(a)(3) was dismissed. Korotynska v. Metro. Life Ins. Co., 2005 WL 991003 (D.Md. Apr.28, 2005). Korotynska appealed, and MetLife contests the district court’s standing determination. We review de novo a district court’s decision to grant judgment on the pleadings. See Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir.2002). II. Assuming that Korotynska’s previous denial of benefits and alleged subjection to improper claims procedures qualify her to bring a claim under § 1132(a)(3), that statutory provision is only available for claims of breach of fiduciary duty in the circumstances outlined by the Supreme Court in Varity. See 516 U.S. at 507-15, 116 S.Ct. 1065. In Varity, the Supreme Court held that § 1132(a)(3) authorizes some individualized claims for breach of fiduciary duty, but not where the plaintiffs injury finds adequate relief in another part of ERISA’s statutory scheme. Id. at 512, 515, 116 S.Ct. 1065. The Court, taking both parts of § 1132(a)(3) as one whole, concluded that the provision creates a “catchall” which “act[s] as a safety net, offering appropriate equitable" }, { "docid": "18975566", "title": "", "text": "of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.... ” Plaintiff is the named beneficiary of the optional life insurance plan and she is seeking benefits under the plan, she thus has the right to seek relief under § 1132(a)(1)(B). In Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), the Supreme Court explained that the “ ‘catchall’ provisions [§ 1132(a)(3) and § 1132(a)(5) ] act as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 [29 U.S.C. § 1132] does not elsewhere adequately remedy.” The Supreme Court granted relief under § 1132(a)(3) to the plaintiffs in Varity Corp. after determining that they could not proceed under any other section of ERISA. Id. at 515, 116 S.Ct. 1065. However, relying on the Supreme Court’s reasoning, courts have denied relief under “catchall” provisions of ERISA when the plaintiff could have brought a claim for denial of benefits under § 1132(a)(1)(B). See Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 615 (6th Cir.1998)(“Because § 1132(a)(1)(B) provides a remedy for Wilkins’s alleged injury that allows him to bring a lawsuit to challenge the plan administrator’s denial of benefits to which he believes he is entitled, he does not have a right to a cause of action for breach of fiduciary duty pursuant to § 1132(a)(3).); Schluter v. Principal Life Insurance Co., 2001 WL 476589 at *4 (N.D.Ill.2001)(“Schluter could not seek equitable relief under § 502(a)(3) because she is provided adequate relief by her right to bring a claim for denial of benefits under § 502(a)(1)(B)”); White v. Sundstrand Corp., 2000 WL 713739 at *12 (N.D.Ill.2000); Frank v. Ameritech Corp., 1999 WL 1011107 at *4 (N.D.Ill.1999). Plaintiff argues that she should not be precluded from seeking relief under § 1132(a)(3) because she may not be able to obtain benefits under § 1132(a)(1)(B) if Clark’s life insurance policy does exclude benefits for those who commit suicide within two years of enrollment. Plaintiff attempts to" }, { "docid": "19925579", "title": "", "text": "relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief would normally not be appropriate.” Id. at 515, 116 S.Ct. 1065. The plaintiffs in Varity qualified for this catchall because they had no remedy under § 1132(a)(1)(B) or § 1132(a)(2). With this guidance, the Sixth Circuit in Wilkins v. Baptist Healthcare System Inc., 150 F.3d 609 (6th Cir.1998), first addressed § 1132(a)(3) as interpreted by Varity. In Wilkins, the plaintiff contended that he was entitled to compensatory damages, pursuant to 29 U.S.C. § 1132(a)(3), based on the defendant’s breach of fiduciary duty to act solely in Wilkins’ interest for the exclusive purpose of providing benefits to him. Id. at 615. This Court interpreted Varity as clearly limiting “the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other remedies.” Id. (citing Varity, 516 U.S. at 512, 116 S.Ct. 1065). Because § 1132(a)(1)(B) provided a remedy for Wilkins’ alleged injury and allowed him to bring a lawsuit to challenge the Plan Administrator’s denial of benefits, a cause of action for breach of fiduciary duty pursuant to § 1132(a)(3) was not appropriate. Id. In further distinguishing Wilkins from the plaintiffs in Varity, this Court noted that the employer-insurer in Varity misled the employees, causing them to lose their non-pension benefits. Id. Several subsequent Sixth Circuit decisions that have addressed § 1 132(a)(3) claims suggest that a plaintiff who is permitted to bring a § 1 132(a)(1)(B) claim for denial of benefits and does so is under no circumstance permitted to also bring a § 1132(a)(3) claim. See Marks v. Newcourt, 342 F.3d 444, 454 (6th Cir.2003); Julia v. Bridgestone/Firestone, Inc., 101 Fed.Appx. 27, 30 (6th Cir.2004); Putney v. Medical Mutual of Ohio, 111 Fed.Appx. 803, 806 (6th Cir.2004). This misunderstanding was dispelled by this Court’s decision in Hill v. Blue Cross and Blue Shield of Mich., 409 F.3d 710 (6th Cir.2005). The Hill decision clarified that under some circumstances an ERISA plaintiff may simultaneously bring claims under both § 1132(a)(1)(B) and § 1 132(a)(3). Id. at 718." }, { "docid": "9985923", "title": "", "text": "not elsewhere remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). But “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’ ” Id. at 515, 116 S.Ct. 1065, quoting 29 U.S.C. § 1132(a)(3). The D.C. Circuit has not decided whether a plaintiff may simultaneously pursue a claim for denial of benefits under section 1132(a)(1)(B) and a claim for breach of fiduciary duty under section 1132(a)(3). However, “[c]ourts in this Circuit have generally followed the view of the majority of circuits that a breach of fiduciary claim under § 1132(a)(3) cannot stand when a plaintiff has an adequate remedy for her injuries under § 1132(a)(1)(B).” Zalduondo v. Aetna Life Ins. Co., 845 F.Supp.2d 146, 155 (D.D.C.2012); see also Clark v. Feder, Semo & Bard, P.C., 808 F.Supp.2d 219, 226 (D.D.C.2011) (holding that a plaintiff “may proceed only under § 1132(a)(1)(B) or § 1132(a)(3), not under both provisions”); Kifafi v. Hilton Hotels Ret. Plan, 616 F.Supp.2d 7, 39 (D.D.C.2009) (dismissing the plaintiffs breach of fiduciary duties claim on the grounds that “a plan participant cannot proceed with a breach of fiduciary duty claim under Section 502(a)(3) when relief is available under other remedial sections of ERISA”). However, a plan participant may simultaneously bring claims under sections 1132(a)(1)(B) and 1132(a)(3) when section 1132(a)(1)(B) does not provide an adequate and complete remedy for the participant’s injuries. See England v. Marriott Int’l, 764 F.Supp.2d 761, 780 (D.Md.2011) (allowing the plaintiff to pursue claims under both section 1132(a)(1)(B) and 1132(a)(3) because the remedy sought under section 1132(a)(3)— the reformation of the terms of the benefit awards — was not available under section 1132(a)(1)(B)). Boster argues that his breach of fiduciary duty claim is “not a repackaged denial of benefits [claim] because it is, at least in part, based upon different facts.” Pl.’s Mot. for Leave to File Am. Compl. at 6. Specifically, he argues that PCAOB breached its fiduciary duty when it falsely told his wife that it" }, { "docid": "11707459", "title": "", "text": "1132(a)(1)(B) allows plan participants to obtain individualized review of an allegedly wrongful denial of benefits. The plaintiffs injury here — denial of benefits by the plan administrator — plainly gives rise to a cause of action under § 1132(a)(1)(B) and as such would usually be appealed under that provision. See, e.g., Donovan v. Eaton Corp., Long Term Disability Plan, 462 F.3d 321, 323 (4th Cir.2006) (appeal of denial of disability benefits under § 1132(a)(1)(B)); Brogan v. Holland, 105 F.3d 158, 159 (4th Cir.1997) (same). The plaintiff herself admits that ERISA provides her with relief outside of § 1132(a)(3) and that she “could also seek a review of a wrongful denial of benefits under [§ 1132(a)(1)(B)].” The fact that the plaintiff has not brought an § 1132(a)(1)(B) claim does not change the fact that benefits are what she ultimately seeks, and that redress is available to her under § 1132(a)(1)(B). B. Nevertheless, plaintiff claims that § 1132(a)(3) relief is “appropriate” under Varity, because review under § 1132(a)(1)(B) would not afford her “adequate” relief. But Varity itself undermines this contention. In Varity, the Supreme Court identified the danger that a beneficiary might “repackage his or her ‘denial of benefits’ claim as a claim for ‘breach of fiduciary duty.’ ” 516 U.S. at 513, 116 S.Ct. 1065. The Court found this risk “unlikely to materialize,” however, in part because “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief.” Id. at 514, 515, 116 S.Ct. 1065. In suggesting that Congress “provided adequate relief’ for a “denial of benefits” claim without recourse to § 1132(a)(3), the Supreme Court intimated that equitable relief for breach of fiduciary duty would not be available for denial of benefits claims appealable under § 1132(a)(1)(B). Although the Second Circuit has held that plaintiffs may seek relief simultaneously under § 1132(a)(1)(B) and § 1132(a)(3), see Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 89-90 (2d Cir.2001), the great majority of circuit courts have interpreted Varity to hold that a claimant whose injury creates a cause of action" }, { "docid": "19963784", "title": "", "text": "appears from Plaintiffs’ amended complaint that Plaintiffs’ failure to comply with Plan terms claim is premised on: 1) the allegation that Duke used an improper interest rate credit for the 1997 and 1998 Plan years; and 2) the allegation that commissions were not included in participants’ compensation for the purposes of calculating opening account balances. See [Proposed Amended Complaint, at ¶¶ 64-76, Docket Entry # 116-2]. Duke argues that Plaintiffs’ claim is actually an unexhausted claim for benefits. Plaintiffs respond that they have in fact exhausted their administrative remedies or, in the alternative, exhaustion should be waived. Exhaustion aside, Plaintiffs do not address the issue that their breach of fiduciary duty claim based on failure to comply with Plan terms is actually a claim for benefits. “[A] claim for breach of fiduciary duty is actually a claim for benefits where the resolution of the claim rests upon an interpretation and application of an ERISA-regulated plan rather than upon an interpretation and application of ERISA.” Smith v. Sydnor, 184 F.3d 356, 362 (4th Cir.1999). Plaintiffs’ breach of fiduciary duty claim based on failure to comply with Plan terms alleges that Duke violated the terms of the Plan in its calculation of interest credits and opening account balances. Thus, resolution of whether Duke violated the terms of the Plan will necessarily rest upon an interpretation and application of the Plan rather than an interpretation and application of ERISA. Accordingly, Plaintiffs’ claim that Duke failed to comply with the terms of the Plan is actually a claim for benefits under 29 U.S.C. § 1132(a)(1)(B). In Korotynska v. Metropolitan Life Ins. Co., the Fourth Circuit held that when § 1132(a)(1)(B) affords the plaintiff adequate relief, a cause of action for breach of fiduciary duty under § 1132(a)(3) is not appropriate. Korotynska, 474 F.3d 101, 107 (4th Cir.2006); see also Edmonds v. Hughes Aircraft Co., 145 F.3d 1324, No. 97-1431, 1998 WL 228200, at *10 (4th Cir. May 8, 1998) (noting that the Supreme Court in Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), did not intend to create" }, { "docid": "19963786", "title": "", "text": "an additional cause of action for every beneficiary challenging a denial of benefits by his plan’s fiduciary); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir.1998) (stating that because plaintiff had adequate relief under § 1132(a)(1), relief through the application of § 1132(a)(3) would be inappropriate). The Fourth Circuit stated that: Although the Second Circuit has held that plaintiffs may seek relief simultaneously under § 1132(a)(1)(B) and § 1132(a)(3), the great majority of circuit courts have interpreted Varity to hold that a claimant whose injury creates a cause of action under § 1132(a)(1)(B) may not proceed with a claim under § 1132(a)(3). These courts have not allowed claimants to proceed with § 1132(a) (3) claims where relief was potentially available to them under § 1132(a)(1)(B), because, in Varity, “[t]he Supreme Court clearly limited the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other remedies.” Korotynska, 474 F.3d at 106-7 (emphasis added) (internal citations omitted). Plaintiffs’ allegation that Duke violated Plan terms by utilizing an improper interest rate credit for the 1997 and 1998 Plan years is currently being pursued simultaneously as a § 1132(a)(1)(B) claim for benefits under count four and a § 1132(a)(3) breach of fiduciary duty claim under count six. Plaintiffs have simply recast their claim for benefits under count four as a claim for breach of fiduciary duty under count six. However, the law in the Fourth Circuit is clear that such alternative pleading is not permitted under ERISA when Plaintiffs have an adequate remedy under § 1132(a) (1)(B). Although Plaintiffs’ challenge to the opening account balances on the basis that commissions were not included in the compensation for purposes of calculating opening account balances is not being pursued simultaneously under another count in the complaint, Plaintiffs’ challenge is really a claim for benefits that should be pursued under 29 U.S.C. § 1132(a)(1)(B). To allow a claim under § 1132(a)(3) under these circumstances would permit Plaintiffs to avoid the implications of § 1132(a)(1)(B) by simply re-characterizing their claim for benefits as a breach of fiduciary duty claim, a result" }, { "docid": "5649237", "title": "", "text": "the breach of fiduciary duty claim is duplica-tive and inappropriate. This court agrees that equitable relief is not appropriate where 29 U.S.C. § 1132(a)(1)(B) provides a remedy for the injury suffered. In Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), the United States Supreme Court interpreted 29 U.S.C. § 1132(a)(3) and limited the statute’s applicability to plaintiffs who have no adequate remedy otherwise furnished by ERISA. See id. at 515, 116 5.Ct. 1065. The Court stated: The statute authorizes “appropriate” equitable relief. We should expect that courts, in fashioning “appropriate” equitable relief, will keep in mind the “special nature and purpose of employee benefit plans,” and will respect the “policy choices reflected in the inclusion of certain remedies and the exclusion of others.” Thus, we should expect that where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be “appropriate.” Id. (internal citations omitted). The plaintiffs in Varity could not proceed under any other subsection in 29 U.S.C. § 1132, as they were no longer members of the Plan at issue. In contrast, Hembree has a cause of action under § 1132(a)(1)(B) for termination of benefits. Therefore, under existing law, he cannot also seek equitable relief under 29 U.S.C. § 1132(a)(3). See Varity, 516 U .S. at 515, 116 S.Ct. 1065; Katz v. Comprehensive Plan of Group Insurance, 197 F.3d 1084, 1088-89 (11th Cir.1999); Harrison v. Digital Health Plan, 183 F.3d 1235, 1237 n. 1 (11th Cir.1999); see also Tolson v. Avondale Indus., 141 F.3d 604, 610 (5th Cir.1998). Plaintiff submits that “[ujnder 29 U.S.C. § 1132(a)(3), the Court is specifically authorized to provide appropriate equitable relief when justified.” [PL Brief in Response to Def. Motion for Summary Judgment]. Plaintiff urges this court to adopt a reading of 29 U.S.C. § 1132(a)(3), in which relief can be authorized under the “other appropriate equitable relief’ language in the situation where the legal remedy under 29 U.S.C. § 1132(a)(1)(B) is not sustainable. Plaintiff contends equitable relief would" }, { "docid": "11707464", "title": "", "text": "Courts should therefore be “especially reluctant to tamper with the enforcement scheme embodied in the statute by extending remedies not specifically authorized by its text.” Id. (internal quotation marks omitted). It would certainly be improvident to do so here. Not only is relief available to the plaintiff under § 1132(a)(1)(B), but the equitable relief she seeks under § 1132(a)(3) — the revision of claims procedures — is pursued with the ultimate aim of securing the remedies afforded by § 1132(a)(1)(B). The plaintiff admits that she reserves her § 1132(a)(1)(B) claim so that she might bring it at a later date under reformed claims procedures achieved through the current litigation. It may be that plaintiff perceives in § 1132(a)(3) a clearer path to § 1132(a)(1)(B) relief while possibly circumventing § 1132(a)(l)(B)’s standard of review of abuse of discretion. But Varity allows equitable relief when the available remedy is inadequate, not when the legal framework for obtaining that remedy is, to the plaintiffs mind, undesirable. “To permit the suit to proceed as a breach of fiduciary duty action would encourage parties to avoid the implications of section 502(a)(1)(B) by artful pleading.” Coyne & Delany Co. v. Blue Cross & Blue Shield of Va., Inc., 102 F.3d 712, 714 (4th Cir.1996). D. Finally, this case is not the exceptional one accommodated in Varity’s observation that adequate legal relief would “normally” make equitable relief inappropriate. 516 U.S. at 515, 116 S.Ct. 1065. The allegations made by Korotynska are routinely taken up in appeals of benefits denials, and they do not constitute special circumstances for which equitable relief is uniquely appropriate. Indeed, if equitable relief were available here, “every wrongful denial of benefits could be characterized as a breach of fiduciary duty.” Coyne, 102 F.3d at 714. Plaintiffs approach would promote § 1132(a)(3) from “safety net” to first line of attack, an outcome at odds with both the plain language of § 1132(a)(1)(B) and the statutory structure of § 1132. See Varity, 516 U.S. at 512, 116 S.Ct. 1065. An approach whereby § 1132(a)(3) review supplanted § 1132(a)(1)(B) review upon a mere allegation of improper" }, { "docid": "19925578", "title": "", "text": "gave the employees a right to appropriate equitable relief to redress the harm that the original deception had caused them individually. Id. at 515, 116 S.Ct. 1065. The Supreme Court determined that while there is a remedy for a breach of fiduciary duty related to the interpretation of plan documents and payment of claims under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), the remedy for “other breaches of other sorts of fiduciary obligation” may be sought under § 1132(a)(3). ERISA specifically provides a remedy for breaches of fiduciary duty with respect to interpretation of plan documents and the payment of claims, one that is outside the framework of the second subsection and cross-referenced [§ 1109], and one that runs directly to the injured beneficiary [§ 1132(a)(1)(B) ]. Why should we not conclude that Congress provided yet other remedies for yet other breaches of other sorts of fiduciary obligation in another, “catchall” remedial section? Id. at 512,116 S.Ct. 1065 (internal citations omitted). The Supreme Court concluded that it “should expect that where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief would normally not be appropriate.” Id. at 515, 116 S.Ct. 1065. The plaintiffs in Varity qualified for this catchall because they had no remedy under § 1132(a)(1)(B) or § 1132(a)(2). With this guidance, the Sixth Circuit in Wilkins v. Baptist Healthcare System Inc., 150 F.3d 609 (6th Cir.1998), first addressed § 1132(a)(3) as interpreted by Varity. In Wilkins, the plaintiff contended that he was entitled to compensatory damages, pursuant to 29 U.S.C. § 1132(a)(3), based on the defendant’s breach of fiduciary duty to act solely in Wilkins’ interest for the exclusive purpose of providing benefits to him. Id. at 615. This Court interpreted Varity as clearly limiting “the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other remedies.” Id. (citing Varity, 516 U.S. at 512, 116 S.Ct. 1065). Because § 1132(a)(1)(B) provided a remedy for Wilkins’ alleged injury and allowed him to bring a lawsuit to challenge the Plan" }, { "docid": "16136098", "title": "", "text": "any provisions of this sub-chapter or the terms of the plan.” In Varity Corp. v. Howe, the Supreme Court described § 1132(a)(3) as a “ ‘catchall’ provisionf ] [that] act[s] as a safety net, offering appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere adequately remedy.” 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Courts have subsequently interpreted Varity to mean that equitable relief under § 1132(a)(3) is not available if § 1132(a)(1)(B) provides an adequate remedy. See, e.g., Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 371-72 (6th Cir.2015); Korotynska v. Metro. Life Ins. Co., 474 F.3d 101, 106 (4th Cir. 2006); Hall v. Lhaco, Inc., 140 F.3d 1190, 1197 (8th Cir.1998). B. Equitable Relief After Amara In CIGNA Corp. v. Amara, 563 U.S. 421, 131 S.Ct. 1866, 1879-80, 179 L.Ed.2d 843 (2011), the Supreme Court held that § 1132(a)(3) authorized equitable relief in the form of plan reformation, even though plaintiffs also claimed relief under § 1132(a)(1)(B). In Amara, employees filed a class action suit against their employer after the employer significantly changed the terms of their pension plan. The employees alleged that their employer did not provide adequate notice of the new plan as required by ERISA. The Supreme Court found that although the employer did violate its disclosure obligations, § 1132(a)(1)(B) could not authorize relief for the employees in the form of plan reformation. Id. at 1876-78. The Amara court held that § 1132(a)(1)(B) could only authorize the enforcement of the terms of the plan, it could not change the terms of the plan. Id. at 1876-77. The Court, nonetheless, held that plan reformation was available under § 1132(a)(3) as an equitable remedy, stating that the power to reform contracts is a traditional power of an equity court. Id. at 1879-80. Therefore, once the plan was reformed under § 1132(a)(3) to reflect the terms of the old plan, it could be enforced under § 1132(a)(1)(B). The fact that this relief takes a monetary form does not remove it from the category of equitable relief. Id." }, { "docid": "16136097", "title": "", "text": "is not unreasonable to read the relevant provisions as excluding service time with Golden Eagle from benefits accrual. In particular, Article 2.16(d) pointedly contemplates what past service credit with Golden Eagle would count toward and suggests that it would be considered employment service with Liberty Mutual only for the purposes of eligibility, vesting, early retirement and spousal benefits. Our analysis is based on whether the Liberty Mutual Board’s reading of the Retirement Plan was reasonable, and not on which party’s interpretation is more persuasive, and we find such an interpretation to be reasonable. Canseco, 93 F.3d at 606. II. Appellants Are Not Barred from Bringing Simultaneous Claims Under 29 U.S.C. § 1132(a)(3) and 29 U.S.C. § 1132(a)(1)(B). A. The Varity Rule Under 29 U.S.C. § 1132(a)(3), a civil action may be brought “by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this sub-chapter or the terms of the plan.” In Varity Corp. v. Howe, the Supreme Court described § 1132(a)(3) as a “ ‘catchall’ provisionf ] [that] act[s] as a safety net, offering appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere adequately remedy.” 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Courts have subsequently interpreted Varity to mean that equitable relief under § 1132(a)(3) is not available if § 1132(a)(1)(B) provides an adequate remedy. See, e.g., Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 371-72 (6th Cir.2015); Korotynska v. Metro. Life Ins. Co., 474 F.3d 101, 106 (4th Cir. 2006); Hall v. Lhaco, Inc., 140 F.3d 1190, 1197 (8th Cir.1998). B. Equitable Relief After Amara In CIGNA Corp. v. Amara, 563 U.S. 421, 131 S.Ct. 1866, 1879-80, 179 L.Ed.2d 843 (2011), the Supreme Court held that § 1132(a)(3) authorized equitable relief in the form of plan reformation, even though plaintiffs also claimed relief under § 1132(a)(1)(B). In Amara, employees filed a" }, { "docid": "19963785", "title": "", "text": "of fiduciary duty claim based on failure to comply with Plan terms alleges that Duke violated the terms of the Plan in its calculation of interest credits and opening account balances. Thus, resolution of whether Duke violated the terms of the Plan will necessarily rest upon an interpretation and application of the Plan rather than an interpretation and application of ERISA. Accordingly, Plaintiffs’ claim that Duke failed to comply with the terms of the Plan is actually a claim for benefits under 29 U.S.C. § 1132(a)(1)(B). In Korotynska v. Metropolitan Life Ins. Co., the Fourth Circuit held that when § 1132(a)(1)(B) affords the plaintiff adequate relief, a cause of action for breach of fiduciary duty under § 1132(a)(3) is not appropriate. Korotynska, 474 F.3d 101, 107 (4th Cir.2006); see also Edmonds v. Hughes Aircraft Co., 145 F.3d 1324, No. 97-1431, 1998 WL 228200, at *10 (4th Cir. May 8, 1998) (noting that the Supreme Court in Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), did not intend to create an additional cause of action for every beneficiary challenging a denial of benefits by his plan’s fiduciary); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir.1998) (stating that because plaintiff had adequate relief under § 1132(a)(1), relief through the application of § 1132(a)(3) would be inappropriate). The Fourth Circuit stated that: Although the Second Circuit has held that plaintiffs may seek relief simultaneously under § 1132(a)(1)(B) and § 1132(a)(3), the great majority of circuit courts have interpreted Varity to hold that a claimant whose injury creates a cause of action under § 1132(a)(1)(B) may not proceed with a claim under § 1132(a)(3). These courts have not allowed claimants to proceed with § 1132(a) (3) claims where relief was potentially available to them under § 1132(a)(1)(B), because, in Varity, “[t]he Supreme Court clearly limited the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other remedies.” Korotynska, 474 F.3d at 106-7 (emphasis added) (internal citations omitted). Plaintiffs’ allegation that Duke violated Plan terms by utilizing an improper interest rate" }, { "docid": "20765530", "title": "", "text": "a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief would normally not be appropriate.” Id., 516 U.S at 515, 116 S.Ct. 1065. The Sixth Circuit in Wilkins v. Baptist Healthcare Sys. Inc., 150 F.3d 609 (6th Cir.1998), interpreted Varity Corp. as limiting “the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other remedies.” 150 F.3d at 615; see also Tackett v. M & G Polymers, USA LLC, 561 F.3d 478, 491 (6th Cir.2009) (relief under § 1132(a)(3) not appropriate where plaintiff merely “repackages” a § 1132(a)(1)(B) benefits claim). Subsequently, in Hill v. Blue Cross and Blue Shield of Mich., 409 F.3d 710, 718 (6th Cir.2005), the Sixth Circuit recognized that there are some circumstances under which an ERISA plaintiff may simultaneously bring claims under both § 1132(a)(1)(B) and § 1132(a)(3). The court held that where an award of individual benefits pursuant to § 1132(a)(1)(B) could not provide an adequate remedy for the alleged injury to the plaintiffs caused by a breach of fiduciary duties, outright dismissal of the plaintiffs’ § 1132(a)(3) claims was in error. Id. In Gore, 477 F.3d at 840, the court examined the nature of the plaintiffs claims, and concluded that plaintiff had alleged two separate and distinct injuries: an erroneous interpretation of plan language by the plan administrator resulting in a wrongful denial of long-term disability benefits, and a claim based on the misrepresentations of the employer concerning the duration of those benefits as being for two years rather than one year. The court concluded that neither § 1132(a)(1)(b) nor § 1132(a)(2) provided a remedy for the alleged misrepresentation by the employer. The court noted that if plaintiff had alleged that the plan administrator breached its fiduciary duty by wrongfully denying benefits, that claim would be duplicative of his denial of benefits claim. Id. at 841. Instead, the plaintiff in Gore alleged a distinct injury through a breach of fiduciary duty in the form of a misrepresentation by the employer concerning the duration of benefits. Id. The court also observed that" }, { "docid": "11707460", "title": "", "text": "undermines this contention. In Varity, the Supreme Court identified the danger that a beneficiary might “repackage his or her ‘denial of benefits’ claim as a claim for ‘breach of fiduciary duty.’ ” 516 U.S. at 513, 116 S.Ct. 1065. The Court found this risk “unlikely to materialize,” however, in part because “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief.” Id. at 514, 515, 116 S.Ct. 1065. In suggesting that Congress “provided adequate relief’ for a “denial of benefits” claim without recourse to § 1132(a)(3), the Supreme Court intimated that equitable relief for breach of fiduciary duty would not be available for denial of benefits claims appealable under § 1132(a)(1)(B). Although the Second Circuit has held that plaintiffs may seek relief simultaneously under § 1132(a)(1)(B) and § 1132(a)(3), see Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 89-90 (2d Cir.2001), the great majority of circuit courts have interpreted Varity to hold that a claimant whose injury creates a cause of action under § 1132(a)(1)(B) may not proceed with a claim under § 1132(a)(3). See, e.g., Antolik v. Saks, Inc., 463 F.3d 796, 803 (8th Cir.2006); Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284, 1287-88 (11th Cir.2003); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610-11 (5th Cir.1998); Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 615-16 (6th Cir.1998); Forsyth v. Humana, Inc., 114 F.3d 1467, 1474-75 (9th Cir.1997); Wald v. Sw. Bell Corp. Customcare Medical Plan, 83 F.3d 1002, 1006 (8th Cir.1996). These courts have not allowed claimants to proceed with § 1132(a)(3) claims where relief was potentially available to them under § 1132(a)(1)(B), because, in Varity, “[t]he Supreme Court clearly limited the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other remedies.” Wilkins, 150 F.3d at 615. A plaintiff whose injury consists of a denial of benefits “has adequate relief available for the alleged improper denial of benefits through his right to sue [the benefit plan] directly under section 1132(a)(1),” and thus “relief through the application" }, { "docid": "11707455", "title": "", "text": "Korotynska v. Metro. Life Ins. Co., 2005 WL 991003 (D.Md. Apr.28, 2005). Korotynska appealed, and MetLife contests the district court’s standing determination. We review de novo a district court’s decision to grant judgment on the pleadings. See Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir.2002). II. Assuming that Korotynska’s previous denial of benefits and alleged subjection to improper claims procedures qualify her to bring a claim under § 1132(a)(3), that statutory provision is only available for claims of breach of fiduciary duty in the circumstances outlined by the Supreme Court in Varity. See 516 U.S. at 507-15, 116 S.Ct. 1065. In Varity, the Supreme Court held that § 1132(a)(3) authorizes some individualized claims for breach of fiduciary duty, but not where the plaintiffs injury finds adequate relief in another part of ERISA’s statutory scheme. Id. at 512, 515, 116 S.Ct. 1065. The Court, taking both parts of § 1132(a)(3) as one whole, concluded that the provision creates a “catchall” which “act[s] as a safety net, offering appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere adequately remedy.” Id. at 512, 116 S.Ct. 1065. But “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’ ” Id. at 515, 116 S.Ct. 1065. Varity itself provides an example of an injury that did not find adequate relief in other provisions of ERISA. The Varity plaintiffs suffered an injury when their employer consolidated many of its unprofitable divisions into a new subsidiary and then persuaded employees to transfer their benefit plans to the new subsidiary through deceptive depictions of its financial outlook. Id. at 493-94, 116 S.Ct. 1065. When the subsidiary failed and the employees lost their nonpension benefits, many sued for reinstatement of the benefits they would have been owed under their previous plan. Id. at 494, 116 S.Ct. 1065. The Supreme Court found: The plaintiffs in this case could not proceed under [§ 1132(a)(1) ] because they were no" }, { "docid": "9985922", "title": "", "text": "PCAOB Mot. for J. on the Pldgs. at 8. Therefore, the Court will grant PCAOB’s motion for judgment on the pleadings on Count II of the original complaint as conceded. 2. The Court will deny Boster’s motions to file an amended and a second amended complaint with respect to Count II as futile. Boster then sought to file an amended and second amended complaint to assert a breach of fiduciary duty claim under 29 U.S.C. § 1132(a)(3) solely against PCAOB. See Am. Compl. ¶¶ 56-61; 2d Am. Compl. ¶¶ 74-80. Section 1132(a)(3) allows plan beneficiaries to bring suit “(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3). This section is a “catchall provision” that “act[s] as a safety net, offering appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). But “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’ ” Id. at 515, 116 S.Ct. 1065, quoting 29 U.S.C. § 1132(a)(3). The D.C. Circuit has not decided whether a plaintiff may simultaneously pursue a claim for denial of benefits under section 1132(a)(1)(B) and a claim for breach of fiduciary duty under section 1132(a)(3). However, “[c]ourts in this Circuit have generally followed the view of the majority of circuits that a breach of fiduciary claim under § 1132(a)(3) cannot stand when a plaintiff has an adequate remedy for her injuries under § 1132(a)(1)(B).” Zalduondo v. Aetna Life Ins. Co., 845 F.Supp.2d 146, 155 (D.D.C.2012); see also Clark v. Feder, Semo & Bard, P.C., 808 F.Supp.2d 219, 226 (D.D.C.2011) (holding that a plaintiff “may proceed only under § 1132(a)(1)(B) or § 1132(a)(3), not under both provisions”); Kifafi" } ]

[ { "docid": "22772871", "title": "", "text": "81; International Harvester Co. v. Kentucky, 234 U. S. 216; Nash v. United States, supra. Thus viewed, the Sherman law is not only a. prohibition against the infliction of a particular type of public injury. It “ is a limitation of rights, . . . which may be pushed to evil consequences and therefore restrained.” Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 49. That such was the view of this Court in deciding the Standard Oil and Tobacco cases, and that such is the effect óf its decisions both before and after those cases, does not seem fairly open to question. Beginning with United States v. Trans-Missouri Freight Association, supra; United States v. Joint Traffic Association, 171 U. S. 505, where agreements for establishing reasonable and uniform freight rates by competing lines of railroad were held unlawful, it has since often been decided and always assumed that uniform price-fixing by those controlling in any substantial manner a trade or business in interstate commerce is prohibited by the Sherman Law, despite the reasonableness of the particular prices agreed upon. In Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 237, a case involving a scheme for fixing prices, this Court quoted with approval the following passage from the lower court’s opinion, (85 Fed. 271, 293): “. . . the affiants say that, in their opinion, the prices at which pipe has been sold by defendants have been reasonable. We do not think the issue an important one, because, as already stated, we do not think that at common law there is any question of reasonableness open to the courts with reference to such a contract.” See also, p. 291. In Swift & Co. v. United States, 196 U. S. 376, this Court approved and affirmed a decree which restrained the defendants “ by combination, conspiracy or contract [from] raising or lowering prices or fixing uniform prices' at which the said meats will be sold, either ■ directly or through their respective agents.” In Dr. Miles Medical Co. v. Park & Sons Co., 220 U." } ]

[ { "docid": "408516", "title": "", "text": "General Foods’ MFSA system violated § 1 of the Sherman Act. No rule under that “charter of liberty” is more firmly established than the ban on price-fixing. A review of the decisional law shows a steady development in the direction of protecting small businessmen and consumers from sophisticated methods of resale price maintenance. It is a long story; we begin at the beginning. In United States v. Addyston Pipe & Steel Co., 6 Cir. 1898, 85 F. 271, aff’d, 1899, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136, a number of companies manufacturing iron pipe formed a combination to divide their territories into cities that were designated the exclusive domain of one or another of the manufacturers. The remaining territory was governed by an agreement whereby all offers to purchase pipe were submitted to a committee which set the price and awarded the contract to the manufacturer that agreed to pay the largest bonus to be divided among the others. After an exhaustive review of the common law authorities, Judge (later Chief Justice) Taft concluded: We can have no doubt that the association of the defendants, however reasonable the prices they fixed, however great the competition they had to encounter, and however great the necessity for curbing themselves by joint agreement from committing financial suicide by ill-advised competition, was void at common law, because in restraint of trade, and tending to a monopoly. 85 F. at 291. The court found it unnecessary, however, to rely upon the common law, and the possible defense it offered for price-fixing that was “reasonable” and merely ancillary to otherwise lawful conduct, for it found that “no matter what the excuse for the combination by defendants in restraint of trade, the illegality of the means stamps it as a conspiracy, and so brings it within that term of the federal statute.” 85 F. at 294. Addyston laid the foundation for the principle that price-fixing among competitors is a per se violation of the Sherman Act. United States v. Trenton Potteries Co., 1927, 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700, further developed the" }, { "docid": "23710667", "title": "", "text": "as it comes up, just as they do in the case of negligence, reasonable notice, and the like. As good a statement as any of the common law upon the subject is that in the Restatement of Torts (§ 765, Vol. IV, Comment on Subsection 2) : “Decision in each case depends upon a comparative appraisal of the values of the object sought to be accomplished by the actors’ conduct, the effects of such conduct and of the object on competition and on business enterprise, and the opposing interests of the actors in freedom of action and of the person harmed in freedom of opportunity to do business.” Again, “self-interest particularly a purpose to advance the business interest of the actors, may be a justification even though the harm caused by the refusal” (to deal) “is intended to be the means of advancing that interest.” There are some situations in which the liabilities have now become settled. No combination fixing prices is valid; it is no excuse that some such arrangement may be necessary to prevent destructive price wars or the like. Whatever doubts were thrown upon United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700, 50 A.L.R. 989, by Appalachian Coals, Inc., v. United States, 288 U.S. 344, 375, 53 S.Ct. 471, 77 L.Ed. 825, and Sugar Institute, Inc., v. United States, 297 U.S. 553, 599, 56 S.Ct. 629, 80 L.Ed. 859, have been finally laid in United States v.. Socony-Vacuum Oil Co., 310 U. S. 150, 210-228, 60 S.Ct. 811, 84 L.Ed. 1129. Again, if a combination effectively excludes, or tries to exclude, outsiders from the business altogether, it is a monopoly, or an incipient monopoly, and it is unconditionally unlawful. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608; Fashion Originators’ Guild v. Federal Trade Commission, 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; American Medical Ass’n v. United States, 317 U.S. 519, 63 S.Ct. 326, 87" }, { "docid": "11868521", "title": "", "text": "457, 668, 61 S.Ct. 703, 85 L.Ed. 949; American Medical Ass’n v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. [434], That is indeed the standard type of an illicit combination.” The Associated Press case, from which we have just quoted and which was affirmed by the Supreme Court, 326 U.S. 1, 65 S.Ct. 1416, 1422, 89 L.Ed. 2013, is directly in point here. That case like this involved voluntary association which resulted in such control of the distribution of news that a newspaper not admitted to membership was • greatly handicapped, although there was nothing to prevent its proceeding independently if able to\" do so. In holding a violation 'of the statute to have. been shown, the Supreme Court said that “The Sherman Act was specifically intended to prohibit independent businesses from becoming ‘associates’ in a common plan which is bound to reduce their competitor’s opportunity to buy or sell the things in which the groups compete.” And the Court later used the following significant language: “The restraints on trade in news here were no less than those held to fall within the ban of the Sherman Act with reference to combinations to restrain trade outlets in the sale of titles, Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608; or enameled ironware, Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 48-49, 33 S.Ct. 9, 14, 15, 57 L.Ed. 107; or lumber, Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 611, 34 S.Ct. 951, 954, 58 L.Ed. 1490, L.R.A.1915A, 788; or women’s clothes, Fashion Originators’ Guild v. Federal Trade Commission, supra; or motion pictures, United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254 [89 L.Ed. 160], Here as in the Fashion Originators’ Guild case, supra, 312 U.S. at page 465, 61 S.Ct. at page 707, 85 L.Ed. 949, ‘the combination is in reality an extra-governmental agency, which prescribes rules for the regulation and restraint of interstate commerce, and provides extra-judicial tribunals for determination and punishment of violations, and thus “trenches upon the power" }, { "docid": "16303088", "title": "", "text": "proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken. Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 838, 84 L.Ed. 1129; division of markets, United States v. Addyston Pipe & Steel Co., 85 F. 271, 46 L.R.A. 122, aff’d, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; group boycotts, Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949; and tying arrangements, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. . Addyston Pipe and Steel Co. v. U.S., 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). . For the literature on Schwinn to which the Court adverted, see note 13 of its opinion. . Cited in note 11 of the T.V. opinion. . There was little evidence that Pitchford was a “price-cutter” and would have sold at a lower price if free to do so. The only instance of a price concession which comes to mind is that of a sale to a hospital in 1969 (see 531 F.2d at 98) where defendants finally absorbed much of the reduction in the guise of a donation to the hospital (which would now be described as “laundered money”) and the inviolability in principle of the fixed list price was maintained. . Schwinn was mentioned only peripherally and incidentally in the charge when discussing price-fixing. All that the Court said was: “Another refinement, which we don’t need to go into here, is another recent Supreme Court case about bicycles. The name of that company was Arnold Schwinn.” Tr. 3230. . Defendants were doubtless seeking the benefit of a holding" }, { "docid": "16303087", "title": "", "text": "the late Tom C. Clark, sitting by designation as the trial judge in the Northern District of California. Ibid., 987. . Justice Holmes in Rearick v. Pennsylvania, 203 U.S. 507, 512, 27 S.Ct. 159, 160, 51 L.Ed. 295 (1906), said that “ ‘Commerce among the several States’ is a practical conception, not drawn from the ‘witty diversities’ (Yelv., 33) of the law of sales.” . The classical explanation of the reasons for establishing a per se rule as an exception to the rule of reason is given by the late Mr. Justice Black in Northern Pacific Co. v. U. S., 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958): However, there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken. Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 838, 84 L.Ed. 1129; division of markets, United States v. Addyston Pipe & Steel Co., 85 F. 271, 46 L.R.A. 122, aff’d, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; group boycotts, Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949; and tying arrangements, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. . Addyston Pipe and Steel Co. v. U.S., 175 U.S. 211, 20 S.Ct." }, { "docid": "23710668", "title": "", "text": "prevent destructive price wars or the like. Whatever doubts were thrown upon United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700, 50 A.L.R. 989, by Appalachian Coals, Inc., v. United States, 288 U.S. 344, 375, 53 S.Ct. 471, 77 L.Ed. 825, and Sugar Institute, Inc., v. United States, 297 U.S. 553, 599, 56 S.Ct. 629, 80 L.Ed. 859, have been finally laid in United States v.. Socony-Vacuum Oil Co., 310 U. S. 150, 210-228, 60 S.Ct. 811, 84 L.Ed. 1129. Again, if a combination effectively excludes, or tries to exclude, outsiders from the business altogether, it is a monopoly, or an incipient monopoly, and it is unconditionally unlawful. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608; Fashion Originators’ Guild v. Federal Trade Commission, 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; American Medical Ass’n v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. -. That is indeed the standard type of an illicit combination. A third instance is an attempt indirectly to extend the scope of a lawful monopoly: e. g., a patent or a copyright, beyond the terms of the grant, even though the sanction employed is no more than the monopoly itself. Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 33 S.Ct. 9, 57 L.Ed. 107; Interstate Circuit, Inc., v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610; Ethyl Gasoline Corporation v. United States, 309 U. S. 436, 60 S.Ct. 618, 84 L.Ed. 852. Finally, a combination may be illegal because of the means used to effect purposes lawful in themselves; and the means may be unlawful although it would not be, if used by a single person. It is arguable that a boycott, for instance, is always such a means: i.e., any use by a combination of its economic power to force a third person not to deal with another whom the combination wishes to coerce. At least," }, { "docid": "17936006", "title": "", "text": "Act make illegal every contract, combination or con spiracy in restraint of trade or commerce among the several states; Sec. 2 makes illegal every combination or conspiracy which monopolizes or attempts to monopolize any part of that trade or commerce. Under the Sherman Act ‘competition not, combination, should be the law of trade.’ National Cotton Oil Co. v. Texas, 197 U.S. 115, 129, 25 S.Ct. 379, 381, 382, 49 L.Ed. 689. And among the many respects in which the Guild’s plan runs contrary to the policy of the Sherman Act are these: it narrows the outlets to zvhich garment and textile manufacturers can sell and the sources from retailers can buy. (Montague & Co. v. Lowry, 193 U.S. 38, 45, 24 S.Ct. 307, 309, 48 L.Ed. 608; Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 48, 49, 33 S. Ct. 9, 14, 15, 57 L.Ed. 107); subjects all retailers and manufacturers who decline to comply with the Guild’s program to an organized boycott (Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 609-611, 34 S.Ct. 951, 953, 954, 58 L.Ed. 1490, L.R.A.1915A, 788); takes away the freedom of action of members by requiring each to reveal to the Guild the intimate details of their individual affairs (United States v. American Linseed Oil Co., 262 U.S. 371, 389, 43 S.Ct. 607, 611, 67 L.Ed. 1035); and has both as its necessary tendency and as its purpose and effect the direct suppression of competition from the sale of unregistered textiles and copied designs (United States v. American Linseed Oil Co., supra, 262 U.S. at page 389, 43 S.Ct. at page 611, 67 L.Ed. 1035). In addition to all this, the combination is in reality an extra-governmental agency, which ; prescribed rules for the regulation and re- I straint of interstate commerce, and provides extra-judicial tribunals for determination and punishment of violations, and thus ‘trenches upon the power of the national legislature and violates the statute.’ Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 242, 20 S.Ct. 96, 101, 44 L.Ed. 136. “Nor is it" }, { "docid": "1694140", "title": "", "text": "been used in that sense unless the context compels to the contrary. * * * “In view of the common law and the law in this country as to restraint of trade, which we have reviewed, and the illuminating effect which that history must have under the rule to which we have referred, we think it results: “a. That the context manifests that the statute was drawn in the light of the existing practical conception of the law of restraint of trade, because it groups as within that class, not only contracts which were in restraint of trade in the subjective sense, but all contracts or acts which theoretically were attempts to monopolize, yet which in practice had come to be considered as in restraint of trade in a broad sense.” Similar statements are to be found in United States v. American Tobacco Co., 221 U.S. 106, 179, 31 S.Ct. 632, 55 L.Ed. 663; Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232; Eastern States Retail Lumber Dealers Ass’n v. United States, 234 U.S. 600, 610, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A.1915A, 788; United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271, 278, 279, 46 L.R.A. 122, affirmed 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; United States Tel. Co. v. Central Union Tel. Co., 6 Cir., 202 F. 66, 70. There are like statements in the debates in Congress. 21 Cong. Rec. 3146, 3148, 3152. And see Judge Taft’s opinion in the Addyston Pipe Co. case, where he said[85 F. 278]: “It is certain that, if the contract of association which bound the defendants was void and unenforceable at the common law because in restraint of trade, it is within the inhibition of the statute * * In Leonard v. Abner-Drury Brewing Co., 25 App.D.C. 161, 174, we said as much with respect to Sec. 3 of the Act. It must, therefore, be considered that the scope of “restraint of trade” in Sec. 3 is to be measured by its use at common law. The common law rule" }, { "docid": "18158743", "title": "", "text": "for its purpose or potential effect the fixing of prices of goods moving in interstate commerce; eliminating competitors from a substantial market; or which divides interstate trade territories, is unreasonable, hence illegal per se. Shotkin v. General Electric Co., supra. See also United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700; Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 458, 60 S.Ct. 618, 84 L.Ed. 852; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 212, 60 S.Ct. 811, 84 L.Ed. 1129; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219; Fashion Originators’ Guild v. Federal Trade Commission, 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; United States v. Addyston Pipe & Steel Co., 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199; Associated Press v. United States, 326 U.S. 1, 15, 65 S.Ct. 1416, 89 L.Ed. 2013. But, a mere declination to sell to competitors or to supply retail outlets in a com petitive market is not illegal, unless such refusals to sell or supply can be shown to be in furtherance of a contract, combination or conspiracy to unduly suppress the free flow of trade or commerce. Shotkin v. General Electric Co., supra; United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 722, 64 S.Ct. 805, 88 L.Ed. 1024. We do not understand Blue Bell to assail the exchange agreements as illegal per se. They do earnestly contend, however, that when utilized to restrict the interstate movement of five million gallons of gasoline per year, they become instrumentalities for the illegal suppression of interstate trade and commerce; that the facts and circumstances leading up to and including the simultaneous cut-offs on February 27, 1950, are entirely sufficient to establish a prima facie case of a combination and conspiracy to fix prices, eliminate competition and divide up markets; that" }, { "docid": "11868523", "title": "", "text": "of the national legislature and violates the statute.” Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 242, 20 S.Ct. 96, 107, 44 L.Ed. 136.’ ” As to the contention that the restraint of trade here involved was a reasonable one, it is a sufficient answer that the effect of the action of the defendants was to exclude a competitor from a substantial market in interstate commerce; and it is well settled that such exclusion is unreasonable per se. “The purpose of the anti-trust laws — an intendment to secure equality of opportunity — is thwarted if gr.oup-power is utilized to eliminate a competitor who is equipped to compete”. William Goldman Theatres v. Loew’s, Inc., 3 Cir., 150 F.2d 738, 743. “Not only is price fixing unreasonable, per se, * * * but also it is unreasonable, per se, to foreclose competitors from any substantial market.” International Salt Co. v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 15, 92 L.Ed. 20; Fashion Originators Guild v. Federal Trade Comm., 2 Cir., 114 F.2d 80, affirmed 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949. “The anti-trust laws are as much violated by the prevention of competition as by its destruction * * *. It follows a fortiori that the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competive advantage, or to destroy a competitor, is unlawful.” United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236. See also Fashion Originators Guild v. Federal Trade Comm., 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; American Medical Ass’n v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434. In the case of United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 259, 89 L.Ed. 160, it appeared that a combination of exhibitors of moving pictures had used its buying power to eliminate competitors. In condemning this as a violation of the anti-trust act the Supreme Court said, “Action by a combination of exhibitors to obtain an agreement with a distributor whereby commerce" }, { "docid": "12262472", "title": "", "text": "of Soda Ash.” (Gov. ex. 110) Calkex by a resolution of its Board of Directors required members to export exclusively tbrougli Calkex (Gov. ex. 146). It also abolished the formal requirement of the resolution in 1940 (Gov. ex. 147), but all members continued to export exclusively through Calkex thereafter. In domestic sales, Calkex members likewise maintained contract provisions restricting the use of ash sold to the consumption of the purchaser (Gov. ex. 164, 165). Its members supplied statistics regarding export shipments made independently of Oalkex (Gov. ex. 107), and cooperated fully with Alkasso in eliminating export competition (Gov. ex. 74, 93, 95, 97, 108). Fashion Originators’ Guild v. Federal Trade Commission, 312 U.S. 457, 61 S. Ct. 703, 85 L.Ed. 949; Eastern States Lumber Association v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A.1915A, 788; United States v. Frankfort Distilleries, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951. Eastern States Lumber Ass’n v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A.1915A, 788; Lawlor v. Loewe, 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341; Straus v. American Publishers’ Ass’n, 231 U.S. 222, 34 S.Ct. 84, 58 L.Ed. 192, L.R.A.,1915A, 1099. Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 84 L.Ed. 1129; also United States v. Trenton Potteries, 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700, 50 A.L.R. 989; Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 33 S.Ct. 9, 57 L.Ed. 107." }, { "docid": "18158742", "title": "", "text": "of petroleum products among the several states. As we summarize the complaint and the contentions of Blue Bell, they are to the effect that the exchange agreements were concertedly utilized to restrict the destination of five million gallons of gasoline, thereby enabling the conspirators to fix and maintain the price of gasoline moving in interstate commerce; eliminate competition; and divide trade territories to the public detriment and to Blue Bell’s damage. The prohibitions of Sections 1 and 2 of the Sherman Act are aimed at all contracts, combinations or conspiracies, which by reason of their purpose or effect tend to prejudice the public interest by unreasonably restraining interstate trade and commerce, or which attempt to monopolize such interstate trade and commerce. Shotkin v. General Electric Co., 10 Cir., 171 F.2d 236, and cases cited. See also Apex Hosiery Co. v. Leader, 310 U.S. 469, 499, 60 S.Ct. 982, 84 L.Ed. 1311; Appalachian Coals, Inc., v. United States, 288 U.S. 344, 359, 53 S.Ct. 471, 77 L.Ed. 825. And, any such contract, combination or conspiracy having for its purpose or potential effect the fixing of prices of goods moving in interstate commerce; eliminating competitors from a substantial market; or which divides interstate trade territories, is unreasonable, hence illegal per se. Shotkin v. General Electric Co., supra. See also United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700; Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 458, 60 S.Ct. 618, 84 L.Ed. 852; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 212, 60 S.Ct. 811, 84 L.Ed. 1129; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219; Fashion Originators’ Guild v. Federal Trade Commission, 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; United States v. Addyston Pipe & Steel Co., 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199; Associated Press v. United" }, { "docid": "8006862", "title": "", "text": "175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136, division of markets; Fashion Originators’ Guild of America v. Federal Trade Comm., 1941, 312 U.S. 457, 61 S.Ct. 703, 85 L. Ed. 949, group boycotts; International Salt Co. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, tying arrangements. . See 155 F.Supp. at page 816. . See e. g. United States v. Patten, 1913, 226 U.S. 525, 33 S.Ct. 141, 57 L.Ed. 333, market cornering; United States v. Addyston Pipe & Steel Co., note 8, supra; Fashion Originators’ Guild of America v. Federal Trade Comm., note 8, supra; United States v. General Electric Co., D.C.D.N.J.1949, 82 F.Supp. 753, market division; United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 60 S. Ct. 811, 84 L.Ed. 1129, price-fixing, output restrictions; United States v. Paramount Pictures, 1948, 334 U.S. 131, 68 S. Ct. 915, 92 L.Ed. 1260, price-fixing and United States v. Frankfort Distilleries, 1945, 324 U.S. 293, 65 S.Ct. 661, 89 L. Ed. 951, resale price maintenance. . See 155 F.Supp. at page 833. . Cf. Mackay Radio & Telegraph Co. v. F.C.C., 1938, 68 App.D.C. 336, 97 F.2d 641, 643. . Cf. Foster-Fountain Packing Co. v. Haydel, 1928, 278 U.S. 1, 10-11, 49 S. Ct. 1, 73 L.Ed. 147, wherein the Supreme Court, granting a temporary injunction, held that the purpose of the State act procured by private activity, allegedly to conserve hulls and heads of unprocessed shrimp, was a feigned purpose and therefore was not a valid exercise of State police power. . Order No. 27, under the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, 7 U.S.C.A. § 601 et seq. . Parenthetically, the court below reached, to mo at least, the unsual result that the counterclaims asserted hy the Railroads against the Truckers could not be maintained though the counterclaims allege acts of substantially the same character and nature as those of the Railroads and Byoir upon which judgment here is based. It is true that the Railroads conceded that the counterclaims are without merit. This concession was, I think, a" }, { "docid": "11868522", "title": "", "text": "here were no less than those held to fall within the ban of the Sherman Act with reference to combinations to restrain trade outlets in the sale of titles, Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608; or enameled ironware, Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 48-49, 33 S.Ct. 9, 14, 15, 57 L.Ed. 107; or lumber, Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 611, 34 S.Ct. 951, 954, 58 L.Ed. 1490, L.R.A.1915A, 788; or women’s clothes, Fashion Originators’ Guild v. Federal Trade Commission, supra; or motion pictures, United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254 [89 L.Ed. 160], Here as in the Fashion Originators’ Guild case, supra, 312 U.S. at page 465, 61 S.Ct. at page 707, 85 L.Ed. 949, ‘the combination is in reality an extra-governmental agency, which prescribes rules for the regulation and restraint of interstate commerce, and provides extra-judicial tribunals for determination and punishment of violations, and thus “trenches upon the power of the national legislature and violates the statute.” Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 242, 20 S.Ct. 96, 107, 44 L.Ed. 136.’ ” As to the contention that the restraint of trade here involved was a reasonable one, it is a sufficient answer that the effect of the action of the defendants was to exclude a competitor from a substantial market in interstate commerce; and it is well settled that such exclusion is unreasonable per se. “The purpose of the anti-trust laws — an intendment to secure equality of opportunity — is thwarted if gr.oup-power is utilized to eliminate a competitor who is equipped to compete”. William Goldman Theatres v. Loew’s, Inc., 3 Cir., 150 F.2d 738, 743. “Not only is price fixing unreasonable, per se, * * * but also it is unreasonable, per se, to foreclose competitors from any substantial market.” International Salt Co. v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 15, 92 L.Ed. 20; Fashion Originators Guild v. Federal Trade Comm., 2 Cir., 114" }, { "docid": "8465482", "title": "", "text": "of competition. It offers security and stability; it eliminates much of the uncertainty of competitive practices; it promises high profits.” And again in United States v. Paramount Pictures, Inc., 334 U.S. 131, 143, 68 S.Ct. 915, 922: “We start, of course, from the premise that so far as the Sherman Act is concerned, a price-fixing combination is illegal per se. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; United States v. Masonite Corporation, supra. We recently held in United States v. United States Gypsum Co., 333 U.S. 364, [400], 68 S.Ct. 525, that even patentees could not regiment an entire industry by licenses containing price-fixing agreements.” Both the territorial sales limitations and price fixing constitute a menace to international trade in tapered bearings. No less harmful and injurious to the unrestricted flow of commerce in tapered bearings was and continues to be the association of defendant, British and French Timken for the purpose of protecting each other’s markets and the exclusion of outsiders from the tapered bearing market. Such conduct is denounced by the antitrust laws. Associated Press v. United States, supra, Montague & Co. v. Lowry, supra, Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 33 S.Ct. 9, 57 L.Ed. 107; United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700, 50 A.L.R. 989. The participation in the foreign cartels by defendant completed the circle within which the combination operated to forestall competition. The circumstances outlined above under which defendant took part in the operation of the cartels leave no room for escape for defendant from the prohibitions of the Sherman Act. The ban on restraints of imports and exports has been consistently enforced by the courts. United States v. General Dyestuff Corp., D.C., 57 F.Supp. 642, United States v. Nord Deutscher Lloyd, 223 U.S. 512, 32 S.Ct. 244, 56 L.Ed. 531. What was so well said in United States v. National Lead Co., supra, 63 F.Supp. at page 524, is equally pertinent when applied to the facts in this case: “The several agreements relating" }, { "docid": "14620708", "title": "", "text": "inquiries to determine the economic necessity of the type of activity in question. As the Supreme Court stated in Northern Pacific v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1957): “(T)here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids “the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken. Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 838, 84 L.Ed. 1129; division of markets, United States v. Addyston Pipe & Steel Co., 85 F. 271, 46 L.R.A. 122 aff’d, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; group boycotts, Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949; and tying arrangements, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20.” In Fashion Originators’ Guild v. F. T. C., 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), the Supreme Court upheld an FTC cease and desist order entered against a group of “original” designers who refused to sell their creations to retailers who purchased and sold copies of the original designs. Although the purpose of the boycott was to prevent “style piracy”, the Court upheld the Commission’s refusal to hear evidence on the reasonableness of the methods pursued by the combination. Such evidence “is no more material than would" }, { "docid": "5561392", "title": "", "text": "But when the intent of those unlawfully preventing the manufacture or production is shown to be to restrain or control the supply entering and moving in interstate commerce, or the price of it in interstate markets, their action is a direct violation of the Anti-Trust Act.” See, also, Addyston Pipe & Steel Co. v. United States, supra, 175 U.S. 211, 241, 242, 20 S.Ct. 96, 44 L.Ed. 136; Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488, 13 Ann.Cas. 8l5, where interstate transportation of plaintiff’s goods was prevented. It is also contended that no unreasonable restraint is shown. See Standard Oil Co. v. United States, 221 U.S. 1, 60, 62, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas.1912D, 734; United States v. American Tobacco Co., 221 U.S. 106, 179, 31 S.Ct. 632, 55 L.Ed. 663; United States v. St. Louis Terminal, 224 U.S. 383, 394, 32 S.Ct. 507, 56 L.Ed. 810; Nash v. United States, 229 U.S. 373, 376, 33 S.Ct. 780, 57 L.Ed. 1232; Eastern States Lumber Ass’n v. United States, 234 U.S. 600, 610, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A.1915A, 788; Maple Flooring Ass’n v. United States, 268 U.S. 563, 45 S.Ct. 578, 69 L.Ed. 1093; Appalachian Coals, Inc., v. United States, 288 U.S. 344, 359, 53 S.Ct. 471, 473, 77 L.Ed. 825; Sugar Institute v. United States, 297 U.S. 553, 597, 56 S.Ct. 629, 641, 80 L.Ed. 859. Appellees seem to make some distinction between an unreasonable restraint and the principle that the public rights must be violated before an offense is committed. These are merely different ways of saying the same thing. • The contention is, we believe, unsound, for an agreement to fix prices is in itself an undue' and unreasonable restraint. United States v. Trenton Potteries, 273 U.S. 392, 396, 401, 47 S.Ct. 377, 381, 71 L.Ed. 700, 50 A.L.R. 989. Undoubtedly we may say the same for monopoly. The allegations concerning the validity of appellees’ patents are attacked on the ground that the patents cannot be collaterally attacked. We believe those allegations to be unnecessary, and they" }, { "docid": "2406126", "title": "", "text": "377, 406, 118 P. 653, 662; Charge to the Grand Jury, Quincy, [Mass.] 218, 221: “Levying War against the King is High Treason; as where People set about redressing public Wrongs; this, Gentle men, the Law calls levying War against the King; because it is going in direct Opposition to the King’s Authority, who is the Redresser of all Wrongs.” Nails v. Commonwealth, 228 Ky. 838, 16 S.W.2d 474. Sugar Institute, Inc., v. United States, 297 U.S. 553, 599, 56 S.Ct. 629, 642, 80 L.Ed. 859: “The freedom of concerted action to improve conditions has an obvious limitation. The end does not justify illegal means. The endeavor to put a stop to illicit practices must not itself become illicit. As the statute draws the line at unreasonable restraints, a cooperative endeavor which transgresses that line cannot justify itself by pointing to evils afflicting the industry or to a laudable purpose to remove them.”; Paramount Famous Lasky Corp. v. United States, 282 U.S. 30, 44, 51 S.Ct. 42, 75 L.Ed. 145. Eastern States Retail Lumber Dealers’ Ass’n. v. United States, 234 U.S. 600, 613, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A. 1915A, 788. Paramount Famous Lasky Corp. v. United States, 282 U.S. 30, 43, 51 S.Ct. 42, 75 L.Ed. 145; United States v. First National Pictures, Inc., 282 U.S. 44, 51 S.Ct. 45, 75 L.Ed. 151. Fashion Originators’ Guild of America, Inc. v. Federal Trade Commission, 312 U.S. 457, 468, 668, 61 S.Ct. 703, 85 L.Ed. 949. United States v. American Linseed Oil Co., 262 U.S. 371, 309, 43 S.Ct. 607, 67 L.Ed. 1035. Fashion Originators’ Guild of America, Inc., v. Federal Trade Commission, 312 U.S. 457, 465, 466, 668, 61 S.Ct. 703, 707, 85 L.Ed, 949: “In addition to all this, the combination is in reality an extra-governmental agency, which prescribes rules for the regulation and restraint of interstate commerce, and provides extra-judicial tribunals for determination and punishment of violations, and thus ‘trenches upon the power of the national legislature and violates the statute.’ Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 242 [20 S.Ct. 96, 107," }, { "docid": "17936017", "title": "", "text": "to the facts in this case: “The restraint on trade in news here were no less than those held to fall within the ban of the Sherman Act with reference to combinations to restrain trade outlets in the sale of tiles, Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608; or enameled ironware, Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 48, 49, 33 S.Ct. 9, 14, 15, 57 L.Ed. 107, or lumber, Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 611, 34 S.Ct. 951, 954, 58 L.Ed. 1490, L.R.A.1915A, 788; or women’s clothes, Fashion Originators’ Guild v. Federal Trade Commission, supra; or motion pictures, United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254 [89 L.Ed. 650]. Here as in the Fashion Originator’s Guild case, supra, 312 U.S. at page 465, 61 S.Ct. at page 707, 85 L.Ed. 949, ‘the combination is in reality an extra-governmental agency, which prescribes rules for the regulation and restraint of interstate commerce, and provides extra-judicial tribunals for determination and punishment of violations, and thus “trenches upon the power of the national legislature and violates the statute.” Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 242, 20 S.Ct. 96, 107, 44 L.Ed. 136.’ By the restrictive By-Laws each of the publishers in the combination has, in effect, ‘surrendered himself completely to the control of the association,’ Anderson v. Shipowners’ Ass’n, 272 U.S. 359, 362, 47 S.Ct. 125, 126, 71 L. Ed. 298, in respect to the disposition of news in interstate commerce. Therefore this contractual restraint of interstate trade, ‘designed in the interest of prevent ing competition,’ cannot be one of the ‘normal and usual agreements in aid of trade and commerce which may be found not to be within the [Sherman] Act * * *.’ Eastern States Lumber Dealers’ Ass’n v. United States supra, 234 U.S. at pages 612, 613, 34 S.Ct. at pages 954, 955, 58 L.Ed. 1490, L.R.A.1915A, 788.” This is anticipatory of the criterion of “appreciable segment” as a test of unreasonableness or monoplistic" }, { "docid": "8006861", "title": "", "text": "have before us a situation where one corporation, or even a few corporations, attempt to eliminate all competition so that it, or they will be left with unbridled power over prices, output, and entry into the competitive field. An entire section of what may be called the “transportation industry” consisting of many railroads is accused of trying to eliminate another section of the transportation industry, the Truckers, a situation that as far as research indicates has never previously resulted in successful antitrust litigation. Even if the Railroads had actually eliminated the Truckers’ competition completely the Railroads’ position would be far different than that of the successful monopolist since there still would be competition among the various railroads. Furthermore the interstate ground transportation industry is a regulated industry, with almost every phase of its activity controlled by the Interstate Commerce Commission. . United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 210, 60 S.Ct. 811, 84 L.Ed. 1129, price-fixing; United States v. Addyston Pipe & Steel Co., 6 Cir., 1898, 85 E. 271, affirmed 1899, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136, division of markets; Fashion Originators’ Guild of America v. Federal Trade Comm., 1941, 312 U.S. 457, 61 S.Ct. 703, 85 L. Ed. 949, group boycotts; International Salt Co. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, tying arrangements. . See 155 F.Supp. at page 816. . See e. g. United States v. Patten, 1913, 226 U.S. 525, 33 S.Ct. 141, 57 L.Ed. 333, market cornering; United States v. Addyston Pipe & Steel Co., note 8, supra; Fashion Originators’ Guild of America v. Federal Trade Comm., note 8, supra; United States v. General Electric Co., D.C.D.N.J.1949, 82 F.Supp. 753, market division; United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 60 S. Ct. 811, 84 L.Ed. 1129, price-fixing, output restrictions; United States v. Paramount Pictures, 1948, 334 U.S. 131, 68 S. Ct. 915, 92 L.Ed. 1260, price-fixing and United States v. Frankfort Distilleries, 1945, 324 U.S. 293, 65 S.Ct. 661, 89 L. Ed. 951, resale price maintenance. . See 155 F.Supp." } ]

[ { "docid": "8911905", "title": "", "text": "constitutional right to a license or to the positions sought does not solve the problem. The question should be stated as whether McCrea and Homer have been deprived of an employment opportunity in private industry by governmental action which does not meet the requirements of the Due Process Clause of the Fifth Amendment. One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law. The denial of appellants’ applications for the licenses significantly curtailed their ability to follow an employment in which they had previously engaged. This was a curtailment of their liberty. See Allgeyer v. State of Louisiana, 165 U.S. 578, 589-590, 17 S.Ct. 427, 41 L.Ed. 832, and Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186, par- ' ticularly the latter’s reference to “the natural right to labor.” There was perhaps at the same time a deprivation of a property interest. Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377, and cases there cited. And since the deprivation was by the United States it was not valid unless accomplished in a manner consistent with due process of law. Whether or not due process was actually accorded need not be decided, however, if the screening program was not in any event authorized by Congress in the Act of May 12, 1948. The necessity for such authorization is not disputed. It will be remembered that in Greene the question was whether the President or Congress had authorized the kind of security screening which resulted in Greene’s loss of his engineering employment in private industry. The requisite authority was not found. In our case, however, Congress in directing the Commandant to pass on appellants’ qualifications has said the Commandant must be satisfied that an applicant’s “character, habits of life, and physical condition are such as to authorize the belief that he is a suitable and safe person to be entrusted with the powers and duties” of the position applied for. While Congress" } ]

[ { "docid": "21946773", "title": "", "text": "State Board of Education, 294 F.2d 150 (5th Cir. 1961). A trial-type hearing is more often required where the matter to be adjudicated relates to an individual’s eligibility under or compliance with established standards, rather than a question of the validity of the standards themselves. See Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Goldsmith v. U. S. Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926); 1 Davis, Administrative Law §§ 7.01-.05 (1958 & Supp.1965). In resolving questions of a factual nature, it is felt that the traditional safeguards of confrontation and cross-examination are required. Cf. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Under subdivision (a) the local agency must give seven days written notice before suspension of aid, specifying the reasons for suspension. The recipient is entitled to appear before a local social services official occupying a position superior to the person who approved the suspension, and present oral and written relevant evidence and reasons on his behalf, with the aid of counsel or other representative. The official then reviews the evidence with the recipient and his representative and makes his decision. Under subdivision (b), the option elected by New York City, the same notice requirements prevail. No oral evidence or witnesses, however, are permitted. The recipient or his representative is only entitled to submit in writing a statement or other evidence demonstrating why his grant should be continued. The local official then reviews the case file, and the statement submitted by the recipient, and makes his determination. In my view the question of whether a trial-type hearing is required before termination of welfare benefits presents a substantial constitutional issue. The burden placed upon the state and local governments by having to continue to make payments during the pend-ency of the hearing and decision is slight and has already been assumed by them under the present regulation. The demand that full hearings would make upon agency manpower and funds is no doubt more substantial. When contrasted, however, with the plight" }, { "docid": "14369028", "title": "", "text": "Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224; Homer v. Richmond, 110 U.S.App.D.C. 226, 292 F.2d 719; Fleuti v. Rosenberg, 9 Cir., 302 F.2d 652. While the situation is different, the underlying reason is the same. This means, of course, that petitioner is not only entitled to notice and a fair hearing, but he is entitled to be informed with reasonable certainty and explicitness concerning the standards by which his fitness for a medical certificate to fly an aircraft in commerce is to be judged. Cf. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992. Viewed in this light, the regulation clearly meets the constitutional test of requisite certitude. Whether the personality disorder is sufficiently severe to have been repeatedly manifested by overt acts lies in the realm of competent proof. Like other determinations of mental condition or responsibility, the fate of the one involved must rest ultimately in the fallible hands of the triers of the facts. See N.L.R.B. v. Local 239, Internat’l Bro. of Teamsters, etc., 2 Cir., 289 F.2d 41; N.L.R.B. v. Sapulpa Typographical Union No. 619, 10 Cir., 321 F.2d 771; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232. A competent psychologist testifying for the Administrator expressed the view that a character or personality disorder is primarily manifested in difficulty with authority and that petitioner’s mental tests “ * * * exhibits a clear and severe chronic and long standing character behavior disorder pattern.” The Board then proceeded to review the overt acts which it relied upon as manifesting petitioner’s difficulty with authority and other antisocial behavior. Among these were petitioner’s actions with a student pilot and his employees, his continual failure to adhere to FAA maintenance requirements and finally his actions at a motel where an FAA investigator was staying. Without delineating the detailed facts relied upon, it is enough to say that they were entirely sufficient to support the ultimate findings of the Board. The order" }, { "docid": "23150292", "title": "", "text": "against deprivation though the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions.” 294 U.S. at 112, 55 S.Ct. at 341. In light of all that has occurred since Mooney — see, e. g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971); cf. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) — it is surprising to say the least to see resurrected the notion that conduct which has “no place in our system of law” when engaged in by a judge, Kent v. United States, supra, 383 U.S. at 554, 86 S.Ct. at 1053, is magically transformed into all the process which is due when engaged in by a prosecutor. It should be clear, then, that the test for when the Constitution demands a hearing depends not on which government official makes the decision, but rather on the importance of that decision to the individual affected. “The extent to which procedural due process must be afforded * * * is influenced by the extent to which [an individual] may be ‘condemned to suffer grievous loss.’ ” Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970). The test is not a precise one, and reasonable men may differ as to its application in close eases, but at least the underlying requirement is clear. “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.” Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). See also Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Slochower v. Board of Higher Education, 350" }, { "docid": "8672686", "title": "", "text": "withholding this information, and the Secretary, through counsel, now seems to agree that both the meeting and the minutes thereof should have been disclosed to Garvey. A fair hearing contemplates full disclosure, and secrecy generates suspicion and doubt. But, we cannot say that in these circumstances the failure to disclose worked a deprivation of due process. The third instance of “secret evidence” is the meeting of the State Committeeman with the County Committee pursuant to the hearing before the Deputy Administrator. Garvey was neither previously nor subsequently apprised of this meeting. Assuming that a report was made to the Administrator, it was not made available to Garvey, nor does the administrative record reflect it. But, the minutes of the meeting, finally made available on judicial review, disclose no new facts, data or information. Rather, they reflect a repetition of what was contained in the memorandum and the open hearing before the State Committee. Moreover, as we have seen, the Administrator announced at the outset of his hearing that an investigation of Garvey’s charges would probably be conducted at the County and State levels on the basis of which he would review and act upon the determinations of the County and State Committees. Garvey made no objection to this procedure. This is not a situation akin to the cases involving ex parte investigatorial accumulations of evidence on the basis of which affected parties suffer defamation of character, or their right to hold a job or pursue a calling is infringed or jeopardized without the right of confrontation and cross-examination as in Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L.Ed.2d 1377; Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417. This practice does indeed tread on tenuous ground, but inasmuch as nothing new or prejudicial is reflected in the minutes, we cannot say they were “secret evidence” which prejudicially affected Garvey’s rights. We agree with" }, { "docid": "18558693", "title": "", "text": "statutory purpose of the currency reporting requirement. Rojas, 671 F.2d at 163. V As we haye noted, 31 C.F.R. § 103.25(b) represents the Secretary’s effort to proscribe conduct that may manifest itself in a variety of forms dúe to the differing structures of airports and the divergent locations of facilities within them. Because the regulation must govern conduct that may arise in many different settings, the term “time of departure” is somewhat imprecise. Despite the imprecision, the regulation is not unconstitutionally vague. An ordinance fails for want of specificity only when it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), or when the regulation “encourages arbitrary and erratic arrests and convictions.” Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Greater leeway is allowed when statutes are regulatory in nature and do not inhibit the exercise of constitutional rights, Id.; Colautti v. Franklin, 439 U.S. 379, 390-91, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979), even if criminal penalties are involved. See, e.g., United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). Even assuming that statutes imposing civil forfeiture need be as carefully tailored as those meting out criminal penalties, the regulation attacked here is drafted with sufficient specificity to fall well within a series of Supreme Court decisions upholding regulatory statutes and ordinances against vagueness challenges. In fact, this case is indistinguishable from Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952). That case involved a vagueness challenge to a regulation promulgated by the Interstate Commerce Commission pursuant to a statute giving the Commission the power to regulate the transportation of hazardous materials, 18 U.S.C. § 835" }, { "docid": "1212915", "title": "", "text": "At the very least due process requires notice of the rule of general applicability that is claimed to be violated. Farrell v. Joel, 437 F.2d 160, 163 (2d Cir. 1971). Cf. Briscoe v. Kusper, 435 F.2d 1046, 1054-1055 (7th Cir. 1970) (due process commands that state regulation of nominating procedures clearly specify requirements); K. Davis, Discretionary Justice 216 (1969). Here there was no regulation against plaintiffs’ activities. The threats of Flores, the officer in charge of the Band, could not take the place of a rule. And, in any ease, Flores’ statements were admitted to be unauthorized and he was disciplined for making them. Due process generally requires an effective hearing. See Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). The plaintiffs’ opportunity to. be heard was minimal at best. Cortright never appeared before the investigating officer, and his letter from Fort Bliss in support of his allegations was not a part of the record when the original findings and conclusion were made. No opportunity was given any of the plaintiffs to confront and cross-examine witnesses or even to see a summary of what they\" said. Compare Goldberg v. Kelly, id. at 269, 90 S.Ct. at 1021 (1970); Willner v. Committee on Character and Fitness, 373 U.S. 96, 103-105, 83 S.Ct. 1175, 1180-1181, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 1413, 3 L.Ed. 2d 1377 (1959); I. C. C. v. Louisville & N. R. Co., 227 U.S. 88, 93-94, 33 S.Ct. 185, 187-188, 57 L.Ed. 431 (1913). Members of the Band who instituted the grievance proceeding were not allowed to obtain civilian counsel or discuss their participation in the Article 138 Proceeding with their already retained counsel. Compare Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970); Powell v. Alabama, 287 U.S. 45, 88-89, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Defendants’ reliance on the Supreme Court’s decision in Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) is misplaced." }, { "docid": "22318617", "title": "", "text": "United States, 292 U.S. 571, 577, 54 S.Ct. 840, 78 L.Ed. 1434 (1934) (Brandeis, J.). The government cannot deprive a private citizen of his continued tenancy, without affording him adequate procedural safeguards even if public housing could be deemed to be a privilege. See Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 285 (March 23, 1970); Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Hornsby v. Allen, 326 F.2d 605, 609 (5 Cir. 1964); Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L. Rev. 1439, 1451-54 (1968); Note, Another Look at Unconstitutional Conditions, 117 U.Pa.L.Rev. 144 (1968). Since these actions were dismissed at the pleadings stage, we must view the allegations in the complaints and supporting affidavits in the light most favorable to the appellants, see p. 857 supra; in this light we find that appellants have a claim for relief. Certain aspects of the alleged present HA procedures cannot stand without a convincing showing at trial that the HA has a compelling need for procedural expedition. “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Dixon v. Alabama State Bd. of Education, 294 F.2d 150, 155 (5 Cir. 1961.) The minimum procedural safeguards required by due process in each situation, depend on the nature of the governmental function involved and the substance of the private interest which is affected by the governmental action. Goldberg v. Kelly, supra, 397 U.S. at 263, 90 S.Ct. at 1017; see Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). Since these competing interests have not been fully developed at the trial level, it is not now appropriate for this court to prescribe the minimum necessary procedural requirements. However, if appellants can" }, { "docid": "840621", "title": "", "text": "is close. This Court is reluctant to attempt to strike down a statute enacted by Congress. Where the issue appears so narrow as here the Court will presume correctness and adopt a construction which lends effect to the clear intent of Congress. Obviously Congress did not specifically define the term “waters of the United States.” The test, as correctly stated by both parties, is whether the term is sufficiently clear or definite and certain as to give fair warning of the conduct that is criminal. Plaintiff cites Boyce Motor Lines Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367; and Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. Defendant cites Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894; and United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989. Boyce refers to or interprets the validity of an Interstate Commerce Commission regulation, Lametta and Bouie refer to or interpret state criminal statutes; Harriss, however, deals with an Act of Congress and is most persuasive. More particularly Harriss is persuasive because one of the arguments made in support of the “vagueness” contention was that the Act would be a deterrent to exercise of First Amendment rights, yet the Court upheld the validity of the legislation because on its face it is “plainly within the area of congressional power and is designed to safeguard a vital national interest.” 347 U.S. 626, 74 S.Ct. 816. That is the case here. The dissent in Harriss indicates the vagueness test should be more stringently adhered to because the legislation is in the domain of the First Amendment. Thus, Harriss points out, as counsel for plaintiff has done here, that \\ the Supreme Court is less inclined to strike down a congressional enactment on “vagueness” if it involves regulatory measures than it is if constitutionally protected acts or conduct of individuals are involved. The term “waters of the United States” as used in context of the Act and in keeping with the legislative intent apparently means just what is says:" }, { "docid": "21946772", "title": "", "text": "provided upon a fair hearing after termination. Specifically, they complain that the new procedures do not provide for confrontation and cross-examination of witnesses, or for an independent hearing examiner. The rules governing fair hearings, on the other hand, plainly provide for confrontation and cross-examination, and are held before state hearing officers specially employed for this purpose. In short, plaintiffs’ demand is for a trial-type hearing prior to termination, rather than a documentary review. Cases requiring that administrative hearings be held before agency action directly affecting personal well-being becomes final are increasingly common. See, e. g., Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964); Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964); Homer v. Richmond, 110 U.S.App.D.C. 226, 292 F.2d 719 (1961). These cases, however, shed little light on the type of hearing required. One test which seems to be evolving requires the court to balance the private right against the government interest to determine the nature of the hearing. See Wasson v. Trow-bridge, 382 F.2d 807 (2d Cir. 1967); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). A trial-type hearing is more often required where the matter to be adjudicated relates to an individual’s eligibility under or compliance with established standards, rather than a question of the validity of the standards themselves. See Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Goldsmith v. U. S. Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926); 1 Davis, Administrative Law §§ 7.01-.05 (1958 & Supp.1965). In resolving questions of a factual nature, it is felt that the traditional safeguards of confrontation and cross-examination are required. Cf. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Under subdivision (a) the local agency must give seven days written notice before suspension of aid, specifying the reasons for suspension. The recipient is entitled to appear before a local social services official occupying a position superior to the person who approved the suspension, and present oral and written relevant evidence and reasons" }, { "docid": "14369026", "title": "", "text": "one in the District Court to determine the validity of the regulation, while at the same time challenging the sufficiency of the facts on review from an order of the CAB made pursuant to the challenged regulation. The validity question was raised for the record before the Board and we can see no good reason for not taking cognizance of it here as prerequisite to determination of sufficiency of the evidence to support the Board’s order based, as it is, on the regulation. On the question of validity, it is well to bear in mind that the FAA Administrator, not the courts, is charged with the responsibility of promulgating rules and regulations for minimum standards of safety in air commerce. 49 U.S.C. §§ 1354(a), 1421(a) (5) (6), (b). And, the Administrator is empowered to provide standards for the mental and physical competence of those who are to be issued certificates of authority to operate aircraft in commerce. 49 U.S.C. § 1422(b). To that end the Administrator has provided by regulation that one who possesses “A character or behavior disorder which is sufficiently severe to have repeatedly manifested itself by overt acts” is unfit to operate an aircraft. The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harris, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; See also Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367. While our case does not involve requisite explicitness of statutory or regulatory language to give fair warning of proscribed conduct, it does involve the right to engage in a specific occupation, and the regulation purports to erect a standard to govern those who are to judge physical or mental fitness to pursue such occupation. In either case a constitutional right is involved and due process is the touchstone. See" }, { "docid": "4195827", "title": "", "text": "with the stipulation. This does not constitute an expression of opinion that the same order would be appropriate, or that it would meet all the constitutional requisites that might be necessary in some other case. . The issue of substantive due process in connection with public housing has not been raised in this lawsuit. Therefore, te disposing of this case, the court intimates no view concerning the nature of such rights. . Justice Frankfurter, concurring in Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 163, 71 S.Ct. 624, 644, 95 L.Ed. 817, suggested some of the considerations that must be taken into account in deciding what procedures due process requires in a particular instance : “The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished * * - . Due process requires, however, that selections among applicants to public housing be made in accordance with reasonable and ascertainable standards. Holmes v. New York City Housing Authority, 2d Cir. 1968, 398 F.2d 262, 265. Colon v. Tompkins Square Neighbors, Inc., S.D. N.Y., 1968, 294 F.Supp. 134. . Note, “Public Landlords and Private Tenants: The Eviction of ‘Undesirables’ from Public Housing Projects.” 77 Yale Law Journal 988, 994, 996-97 (1968). . See Greene v. McElroy, 1959, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. Cf. Cafeteria and Restaurant Workers v. McElroy, 1961, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed. 2d 1230. . See Willner v. Committee on Character and Fitness, 1963, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224; Schware v. Board of Bar Examiners, 1957, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; Konigsberg v. State Bar, 1957, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; Goldsmith v. Board of Tax Appeals, 1926, 270 U.S. 117," }, { "docid": "18457108", "title": "", "text": "Id. at 2. . H.R.Rep.No.92-911, 92d Cong., 2d Sess. 117 (1972). . By the terms of the statute, the defendant was entitled to “notice and opportunity for a hearing.” In interpreting the meaning of these two essential components of due process, as a matter of constitutional law as well as when construing statutory language, courts have generally held that while due process is a flexible standard, the fair intendment of these two phrases, absent exigent circumstances, is a procedure which would apprise the defendant of all the evidence to be considered and would give it a chance to rebut that evidence. See Willner v. Committee on Fitness and Character, 373 U.S. 96, 103-06, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963) ; Greene v. McElroy, 360 U.S. 474, 496-97, 507, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) ; Morgan v. United States, 304 U.S. 1, 18-19, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) ; Crowell v. Benson, 285 U.S. 22, 47-48, 52 S.Ct. 285, 76 L.Ed. 598 (1932) ; Freitag v. Carter, 489 F.2d 1377, 1382 (7th Cir. 1973) ; cf. Brandt v. Hickel, 427 F.2d 53, 56 (9th Cir. 1970). It is possible that deficiencies in the procedures at the initial hearing could in some cases be remedied by a full hearing before the Coast Guard Commandant on the appeal from the district commander’s decision. See Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div., 312 U.S. 126,152-53, 61 S.Ct. 524, 85 L.Ed. 624 (1941) ; United States v. Patterson, 465 F.2d 360, 361 (9th Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed. 2d 487 (1972) ; Rosenberg v. Commissioner of Internal Revenue, 450 F.2d 529, 532 (10th Cir. 1971) ; McTiernan v. Gronouski, 337 F.2d 31, 35 (2d Cir. 1964). But there was no such full hearing at the appellate stage in this case. Moreover, to satisfy the statutory mandate, the defendant on the appeal should have known in full the record of the initial hearing which the Commandant would be reviewing on appeal, the hearing officer’s reasons for his decision, and any additional evidence" }, { "docid": "14369027", "title": "", "text": "character or behavior disorder which is sufficiently severe to have repeatedly manifested itself by overt acts” is unfit to operate an aircraft. The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harris, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; See also Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367. While our case does not involve requisite explicitness of statutory or regulatory language to give fair warning of proscribed conduct, it does involve the right to engage in a specific occupation, and the regulation purports to erect a standard to govern those who are to judge physical or mental fitness to pursue such occupation. In either case a constitutional right is involved and due process is the touchstone. See Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224; Homer v. Richmond, 110 U.S.App.D.C. 226, 292 F.2d 719; Fleuti v. Rosenberg, 9 Cir., 302 F.2d 652. While the situation is different, the underlying reason is the same. This means, of course, that petitioner is not only entitled to notice and a fair hearing, but he is entitled to be informed with reasonable certainty and explicitness concerning the standards by which his fitness for a medical certificate to fly an aircraft in commerce is to be judged. Cf. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992. Viewed in this light, the regulation clearly meets the constitutional test of requisite certitude. Whether the personality disorder is sufficiently severe to have been repeatedly manifested by overt acts lies in the realm of competent proof. Like other determinations of mental condition or responsibility, the fate of the one involved must rest ultimately in the fallible hands" }, { "docid": "8672687", "title": "", "text": "be conducted at the County and State levels on the basis of which he would review and act upon the determinations of the County and State Committees. Garvey made no objection to this procedure. This is not a situation akin to the cases involving ex parte investigatorial accumulations of evidence on the basis of which affected parties suffer defamation of character, or their right to hold a job or pursue a calling is infringed or jeopardized without the right of confrontation and cross-examination as in Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L.Ed.2d 1377; Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417. This practice does indeed tread on tenuous ground, but inasmuch as nothing new or prejudicial is reflected in the minutes, we cannot say they were “secret evidence” which prejudicially affected Garvey’s rights. We agree with the trial court that Garvey had ample opportunity to present his evidence and contentions and that he had a fair and adequate hearing which complied with the requirements of procedural due process. It is true that the Administrator’s findings were based in part on erroneous data pertaining to the spread of yield. Yet, we must agree with the trial court that the evidence was sufficient to sustain the administrative appraisal of Garvey’s normal yield and that the determinations, based as they were upon inspections and local knowledge, were not arbitrary or capricious or the result of bias or prejudice. The judgment is affirmed. We also affirm the judgment in No. 9626 for the reasons stated in the trial court’s opinion reported at 263 F.Supp. 579, and for the reasons stated herein. . Garvey also appeals the trial court’s contemporaneous dismissal of his suit for injunctive relief in No. 9626; he had asked there that the District Court enjoin the issuance of any wheat certificates in Kiowa County, Colorado, for certain later crop years until due" }, { "docid": "1212916", "title": "", "text": "of the plaintiffs to confront and cross-examine witnesses or even to see a summary of what they\" said. Compare Goldberg v. Kelly, id. at 269, 90 S.Ct. at 1021 (1970); Willner v. Committee on Character and Fitness, 373 U.S. 96, 103-105, 83 S.Ct. 1175, 1180-1181, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 1413, 3 L.Ed. 2d 1377 (1959); I. C. C. v. Louisville & N. R. Co., 227 U.S. 88, 93-94, 33 S.Ct. 185, 187-188, 57 L.Ed. 431 (1913). Members of the Band who instituted the grievance proceeding were not allowed to obtain civilian counsel or discuss their participation in the Article 138 Proceeding with their already retained counsel. Compare Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970); Powell v. Alabama, 287 U.S. 45, 88-89, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Defendants’ reliance on the Supreme Court’s decision in Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) is misplaced. There the Court held that summary denial of a security clearance by the commander of a military installation to an employee of a private contractor did not deny due process although no specific reason for the denial was given and no hearing held. No security issue is raised in the instant case. Kiiskila v. Nichols, 433 F.2d 745, 750-751 (7th Cir. 1970) (en banc). We are not deciding what constitutes due process in an Article 138 Proceeding. All this Court now holds is that if a 138 Proceeding is relied upon to limit this Court’s power to review, at least minimal due process standards must be met. For purposes of limiting scope of review a totally inadequate hearing is equivalent to no hearing. Our decision in this matter need not, however, rest on the fact that the plaintiff was denied due process in the Article 138 Proceeding. Based on the whole record compiled by the investigating officer, there is no substantial evidence to support his findings and conclusions. Although additional evidence was received by the" }, { "docid": "822061", "title": "", "text": "Doe to confront and question the sources who made the allegations against her. The right to confront and cross-examine witnesses applies to administrative proceedings where an interest protected by the Due Process Clause is at stake. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Willner v. Committee on Character and Fitness, 373 U.S. 96, 104-05, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). An accuser who whispers his charges to an FBI investigator may be motivated by malice or mistake, and the investigator, having access to only a part of the facts, may be unable to detect the infirmity. The accused, having the advantage of knowing the truth, may be able at once to expose the falsehood or distortion. For a full hearing, the accused must have a chance to know the identity of the accuser, to see and hear him testify, and he must have a chance to explain, to submit rebuttal evidence and argument, and to cross-examine. Davis, Administrative Law Treatise § 12:9, at 444 (1979). Although the CSC did not render a judgment on Doe’s guilt or innocence, it did convey “publications” of possibly “unfounded designations” that “so to harm the reputation of another as to lower [her] in the estimation of the community or to deter third persons from associating or dealing with [her].” Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 139, 71 S.Ct. at 632; see Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1958). To successfully defend its decision to include the derogatory reports in her file, in the face of overwhelming contrary evidence, the CSC must allow Doe to confront and question the sources in an administrative hearing. See Goldberg v. Kelly, 397 U.S. 254, 268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Bunker Hill Co. v. Environmental Protection Agency, 572 F.2d 1286, 1305 (9th Cir. 1977); Doe v. Anker, supra, 451 F.Supp. at 253. If the agency views these reports as sufficiently credible to be incorporated into an official government file, then the sources’ credibility is a critical issue" }, { "docid": "22957890", "title": "", "text": "and billiard room license. This decision of Maine’s highest court, in the First Circuit’s words, “would seem to have conferred upon Roy a property interest in the license. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) (‘The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except “for cause.” ’).” 712 F.2d at 1522. No such entitlement by order of the court (or otherwise) exists in the present case. Similarly, when a person seeking the right to practice law has passed the bar examination and there is no indication that he is not a person of good moral character, his property interest, as distinguished from the absence of one in the present case, is readily apparent. Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752,1 L.Ed.2d 796 (1957). No such entitlement exists in the present case. Nor is this case comparable to many relied upon by appellants in which the plaintiff’s vested property interest was clear or assumed. See, e.g., Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) (protected “liberty” and “property” encompass freedom to pursue private occupation free of unreasonable government interference); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (liberty interest in being free to work in an occupation free of state-imposed restrictions based solely on race or nationality); Thompson v. Schmidt, 601 F.2d 305 (7th Cir.1979) (citizen has protected right to pursue private occupation free of unreasonable state regulation). Our research has failed to reveal any instance in which the absence of a fundamentally fair procedure has been held actionable under § 1983 in the absence of a showing that it deprived the plaintiff of a property or liberty interest recognized by law. Plaintiffs also contend that the defendants’ denial of their application for a ZBA certificate of location approval violated their equal protection rights. We disagree. Absent a claim" }, { "docid": "23150293", "title": "", "text": "decision to the individual affected. “The extent to which procedural due process must be afforded * * * is influenced by the extent to which [an individual] may be ‘condemned to suffer grievous loss.’ ” Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970). The test is not a precise one, and reasonable men may differ as to its application in close eases, but at least the underlying requirement is clear. “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.” Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). See also Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123, 163-166, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Mr. Justice Frankfurter, concurring); Jones v. Robinson, 142 U.S.App.D.C. 221, 440 F.2d 249 (1971); Dixon v. Alabama State Board of Education, 5 Cir., 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). All of these cases involved decision by executive, rather than judicial, officers. Yet in each case the Constitution was held to require a hearing, presumably because “the [individual’s] interest in avoiding * * * loss outweigh [ed] the governmental interest in summary adjudication.” Goldberg v. Kelly, supra, 397 U.S. at 263, 90 S.Ct. at 1018. In Kent the Supreme Court weighed the grievous consequences of a waiver decision against the Government’s relatively meager interest in summary procedures. In the end the Court struck the balance in favor of fair procedures, and that balance is good enough for me. The argument for why appellee should be entitled to representation by counsel at" }, { "docid": "23448235", "title": "", "text": "any tribunal. It is odious wherever exhibited, and nowhere does it appear more so than when exercised by a judicial officer towards a member of the bar practicing before him.” We turn to some of the incidents of due process claimed to be denied attorneys by the procedure used by the state in disciplining members of the bar. B. Meaningful Hearing by Trier of Fact 1. Requirement of Opportunity tobe Heard “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Particularly when a person’s good name, integrity, reputation or hon- or is at stake because of government action, a full and fair hearing should include, at the very least, notice of the charges or complaint, disclosure of the evidence supporting the charges, and an opportunity, to be heard and to confront and cross-examine witnesses. See, e. g., Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed. 2d 515 (1971); Willner v. Comm, on Character & Fitness, 373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 492, 496-97, 79 S.Ct. 1400, 1411, 1413, 3 L.Ed.2d 1377 (1959). It follows that in attorney disciplinary proceedings, due process requires a reasonable opportunity to present, a defense to the trier. See, e. g., In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. denied, 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (1967); Kivitz v. SEC, 154 U.S.App.D.C. 372, 475 F.2d 956 (1973); In Re Los Angeles County Pioneer Society, 217 F.2d 190 (9th Cir. 1954). The hearing “must be granted . . . in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). a. Evaluating Credibility of Witnesses When the credibility of witnesses is involved, a meaningful hearing should include their appearance before the trier-of-fact so that it can observe" }, { "docid": "18457107", "title": "", "text": "a penalty for a violation is the Coast Guard’s, not ours. By that very token, the neglect by the Coast Guard of its procedural duties in making the factual determinations about whether a violation took place and the appropriateness of the penalty' assessed must be remedied there, not here. See FPC v. Idaho Power Co., 344 U.S. 17, 20-21, 73 S.Ct. 85, 97 L.Ed. 15 (1952); SEC v. Chenery Corp., 332 U.S. 194, 199-201, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Jacob Siegel Co. v. FTC, 327 U.S. 608, 613-14, 66 S.Ct. 758, 90 L.Ed. 888 (1946); Ford Motor Co. v. NLRB, 305 U.S. 364, 372-74, 59 S.Ct. 301, 83 L.Ed. 221 (1939). Defendant’s motion is granted. Plaintiff’s cross-motion for partial summary judgment is denied. The complaint is dismissed, but without prejudice to the bringing of a subsequent complaint if and when, after new administrative proceedings, penalties are again assessed and resisted. It is so ordered. . Pretrial Order ¶3(a)(14), (27). . Id., ¶ 3(a) (28). . Memorandum, of Law opposing defendant’s motion 15. . Id. at 2. . H.R.Rep.No.92-911, 92d Cong., 2d Sess. 117 (1972). . By the terms of the statute, the defendant was entitled to “notice and opportunity for a hearing.” In interpreting the meaning of these two essential components of due process, as a matter of constitutional law as well as when construing statutory language, courts have generally held that while due process is a flexible standard, the fair intendment of these two phrases, absent exigent circumstances, is a procedure which would apprise the defendant of all the evidence to be considered and would give it a chance to rebut that evidence. See Willner v. Committee on Fitness and Character, 373 U.S. 96, 103-06, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963) ; Greene v. McElroy, 360 U.S. 474, 496-97, 507, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) ; Morgan v. United States, 304 U.S. 1, 18-19, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) ; Crowell v. Benson, 285 U.S. 22, 47-48, 52 S.Ct. 285, 76 L.Ed. 598 (1932) ; Freitag v. Carter, 489 F.2d 1377, 1382" } ]

[ { "docid": "16220429", "title": "", "text": "answer stating it was entitled to subrogation under § 48-118, but it did not otherwise participate in the trial. After setting out the above-quoted holding in Rehn, the Nebraska Supreme Court held that the same rule “would also apply to res judicata” and that on these facts the employer was not collaterally estopped to relitigate issues decided in the employee’s suit. 133 N.W.2d at 471. The level of employer participation is essentially the same in this case as in American Province. Therefore, the district court properly denied Sterkel’s application for division of expenses because Ace Hardware did not “join in the prosecution of [his] claim” for purposes of § 48-118. See also Moyer v. Douglas & Lomason Co., 212 Neb. 680, 325 N.W.2d 648, 651 (1982) (employer did not join for purposes of § 48-118 when it was made a defendant, retained its own counsel, and “was helpful in a few instances”). The judgment of the district court is affirmed. . The HONORABLE WARREN K. URBOM, Senior United States District Judge for the District of Nebraska. . Sterkel admitted that he was aware that Frue-hauf had recently painted the trailer and that he had had difficulties with the slider prior to the injury. Fruehauf argued ’that Sterkel should have checked the slider pins and sought help before yanking on the slider lever. It also noted that Sterkel could have avoided the need to adjust the slider by traveling an extra three miles. . During Sterkel’s case-in-chief, two witnesses testified that they cover the slider when painting the underconstruction of trailers. Thus, the proferred rebuttal testimony was cumulative. The exclusion of cumulative evidence does not prejudice a party’s case. See Harris v. Steelweld Equip. Co., 869 F.2d 396, 399-400 (8th Cir.), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989). . Although we are reviewing the question whether the employer joined in the employee’s suit de novo because the Nebraska Supreme Court appears to treat this as an issue of law, we defer to the district court’s findings as to the extent of Ace Hardware’s participation in the" } ]

[ { "docid": "23486903", "title": "", "text": "defense. To get this test admitted into evidence Wright made a deal with the prosecutor. The prosecutor would agree to let the test come into evidence if Wright would agree to let the state’s psychologist, Dr. Stanley, testify in rebuttal. Stanley had previously examined Gray to determine if he were competent to stand trial. Wright stated that he had wanted Stanley to testify since Stanley’s testimony could be used to establish that Gray was mentally disturbed. Although Wright did not interview Stanley before trial, he did review the reports which Stanley had compiled on Gray. Gray’s present counsel now faults the course pursued by Wright and Heidelberg for two reasons. First, he claims that their failure to interview certain witnesses prevented them from making an informed decision on what defenses to offer at the sentencing phase. Second, he claims that having chosen to argue only that Gray was mentally disturbed, Wright and Heidelberg failed to prepare adequately for Gray’s defense. He claims that these omissions deprived Gray of his right to the effective assistance of counsel. In this circuit, the standard for constitutionally effective assistance of counsel is “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974). The determination of whether a counsel rendered reasonably effective assistance turns in each case on the totality of facts in the entire record. See Washington v. Estelle, 648 F.2d 276 (5th Cir.), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981); United States v. Gray, 565 F.2d 881 (5th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). Thus, we must consider a counsel’s performance in light of “the number, nature, and seriousness of the charges .. . the strength of the prosecution’s case and the strength and complexity of the defendant’s possible defenses.” Washington v. Watkins, 655 F.2d 1346, 1357 (5th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 2021, 71 L.Ed.2d -(1982). In this context, we recently recognized that while attorneys" }, { "docid": "16799361", "title": "", "text": "of premeditation. C. Ineffective Assistance of Counsel: Sentencing Phase Stanley asserts that trial counsel was ineffective during the sentencing phase because he “failed to offer the wealth of mitigating evidence that was at his disposal.” There appear to be two parts to this argument. First, Stanley contends that counsel failed to “call a single mental health expert to testify at sentencing, despite the fact that all of the experts ... agreed that Stanley’s mental capacities were impaired at the time of the crime,” and failed to offer testimony “regarding Stanley’s mental health, his low IQ, or to explain, from a scientific standpoint, how the drug and alcohol abuse could have affected his actions on the night of the crime.” Second, Stanley argues that trial counsel’s failure to investigate the significance of the Hammitt interview or provide that information to the mental health experts constituted ineffective assistance of counsel. During the guilt phase, the experts’ testimony focused on whether Stanley satisfied the legal standard of insanity, not on the broader effects of his substance abuse. Specifically, in his report to the court, Dr. Garcia-Bunuel stated that, “[h]ad [Stanley] not been under the influence of a combination of alcohol, marijuana and cocaine, the alleged crimes would not have been committed in that his ability to conform his conduct to the requirements of the law would have been very seriously impaired.” At trial, Dr. Garcia-Bunuel testified that, “Defendant at the time of the commission of the alleged offense was under the influence of alcohol, marijuana, cocaine. He was not psychiatrically ill ... [and] was able to appreciate the difference between right and wrong as applied to his actions.” Similarly, Dr. Bindelglas concluded in his report to the court that, “[a]t the time of the offense ... the defendant’s ability to think clearly, reflect on the consequences of his actions and to control his activity were significantly impaired.” Neither expert testified regarding the cumulative effect of substance abuse on Stanley. But while the expert testimony during the guilt phase was clearly limited in its scope, Stanley provides no evidence to suggest what additional testimony" }, { "docid": "11861852", "title": "", "text": "may not even serve as proper grounds for a reversal. See, e.g., Littleton v. McNeely, 562 F.3d 880, 891 (8th Cir. 2009). But even if the plaintiffs had properly objected to the exclusion of Upadhye’s testimony, there would be no error. “Whether a witness is qualified to express an opinion is a matter left to the sound discretion of the trial judge.” McDonald, 724 F.2d at 248 (quoting A. Belanger & Sons, Inc. v. U.S. for Use & Benefit of Nat’l U.S. Radiator Corp., 275 F.2d 372, 376 (1st Cir. 1960)). Here, the district court excluded Upadhye’s proposed testimony because he was “not [an] economist ]” and “d[id] not have the requisite qualifications to testify.” That decision, especially -given Upadhye’s reliance on his general experience and his failure to cite any methodology undergirding his opinions, was not an abuse of discretion. The district court may also have “regarded [Upadhye’s] proffered testimony as cumulative,” as McGuire had already testified about the Ranbaxy reverse payment and Upadhye would have offered only a “real world” spin on that testimony. Id. 4. Exclusion of Plaintiffs’ Proposed Rebuttal Evidence The plaintiffs next seek reversal on the ground that the district court’s exclusion of their “rebuttal” evidence was error. Not so. “The principal objective of rebuttal is to permit a litigant to counter new, unforeseen facts brought out in the other side’s case.” Faigin v. Kelly, 184 F.3d 67, 85 (1st Cir. 1999). “[T]he decisions as to what constitutes proper rebuttal evidence ... lie within the sound discretion'of the trial judge and are subject to substantial deference.” United States v. LiCausi, 167 F.3d 36, 52 (1st Cir. 1999). The plaintiffs sought to admit three pieces of evidence, purportedly in an effort to rebut the testimony of two defense witnesses,- “that AstraZeneca never ‘expressed] any willingness to agree to any’ date other than May 27, 2014.” The proposed rebuttal evidence consisted of (1) McGuire’s Event Study testimony, which the district court- had already rejected as part of the plaintiffs’ case in chief; (2) an economic analysis of a no-payment settlement by another expert, Dr. Keith Leffler; and" }, { "docid": "23486913", "title": "", "text": "enough to have been comprehended by the jury, presentation of the report to the jury was sufficient. Gray, finally, faults his counsel for not interviewing Stanley, the state’s rebuttal witness, prior to his testimony. Gray contends that Wright’s familiarity with Stanley’s reports was insufficient preparation for trial. We disagree. We have previously recognized the “critical interrelation between expert psychiatric assistance and minimally effective representation of counsel.” United States v. Fessel, 531 F.2d 1275, 1279 (5th Cir. 1976). Thus, we have held that the failure to seek psychiatric testimony may constitute ineffective assistance. See id. (failure to move for a court appointed psychiatrist); United States v. Edwards, 488 F.2d 1154, 1164 (5th Cir. 1974) (failure to pursue a successful motion for a court appointed psychiatrist); Greer v. Beto, 379 F.2d 923, 925 (5th Cir. 1967) (failure to offer any evidence on defendant’s mental condition). The case at bar does not concern a failure to seek any psychiatric testimony; instead, it concerns the extent of preparation required prior to presenting a psychiatrically related defense. We need not, however, explore the perimeters of this issue since we find that Gray was not prejudiced by his counsel’s failure to interview Stanley. Stanley’s testimony on direct examination falls into two parts. In the first part, Stanley presented the jury with an analysis of Gray’s personality based on his earlier observations of Gray. This part of Stanley’s testimony repeats almost verbatim a report which Stanley had prepared on February 1, 1978, and which Wright had previously studied. Because Wright could not have gained a clearer understanding of this part of Stanley’s testimony if he had interviewed Stanley extensively, Gray was not prejudiced by the fact that Wright had only read Stanley’s report. The second part of Stanley’s testimony concerns the Minnesota Multiphasic Personality Inventory and Stanley’s interpretation of it. Stanley had not seen the results of the test as administered to Gray. This had been done by the Arizona prison officials. Thus, Wright could have obtained Stanley’s views on Gray’s test only by allowing Stanley, the state’s rebuttal witness, to examine the test before trial. We" }, { "docid": "16799355", "title": "", "text": "revealed in the Hammitt interview to his experts. According to Stanley, the experts could then explain the significance of that interview to the jury to establish an insanity or diminished capacity defense. However, Arizona law bars the admission of expert testimony regarding the mental state of the defendant at the time of the offense. See State v. Mott, 187 Ariz. 536, 931 P.2d 1046, 1050 (1997). As a result, Arizona courts have “consistently refused to allow psychiatric testimony to negate specific intent.” Id. at 1051 (citations omitted). “Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.” Id.; see also Clark v. Arizona, 548 U.S. 735, 756, 779, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006) (holding that exclusion of expert testimony regarding diminished capacity does not violate due process). This is a longstanding rule in Arizona. See Mott, 931 P.2d at 1050. Much of the proffered testimony upon which Stanley relies falls within the scope of Arizona’s bar. For example, Dr. Bindelglas, one of the expert witnesses, stated in an affidavit: Without regard to whether Stanley was insane under the requirements of Arizona law at the time the shooting of his wife and daughter occurred, there was a very real issue as to whether Stanley could premeditate his actions if they occurred during a Dissociative Reaction .... Had I been asked, I would have testified that a Dissociative Reaction is a spontaneous, involuntary event and so there were very substantial doubts that Stanley premeditated his actions, regardless of whether he met the legal test for insanity in Arizona. Dr. Bindelglas declared that access to the Hammitt interview would have provided corroboration for his conclusion that Stanley had suffered a dissociative reaction. Similarly, another expert witness, Dr. Garcia-Bunuel, stated in an affidavit that the Hammitt interview generated an “opinion that at the time of the killing of his wife and daughter, it is highly probable that Mr. Stanley was suffering from a Dissociative Reaction.” Expert testimony that Stanley suffered a dissociative reaction at" }, { "docid": "21939733", "title": "", "text": "(by implication). Moreover, in Stanley v. Zant, 697 F.2d 955 (11th Cir.1983), this court expressly stated that in some cases: [C]ounsel could reasonably conclude that such evidence [character evidence] would be of little persuasive value or that it would cause more harm than good by opening the door for harmful cross-examination or rebuttal evidence____ Having conducted a sufficient investigation, counsel may make a reasonable strategic judgment to present less than all possible available evidence in mitigation. Stanley, 697 F.2d at 965. Similarly, in Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), the petitioner argued that his trial counsel was ineffective because counsel failed to conduct an adequate investigation, the results of which would allegedly have been the discovery of favorable character witnesses. Petitioner also argued that his counsel had not prepared properly for the sentencing hearing inasmuch as he failed to interview six readily available character witnesses for mitigation purposes. After evaluating the affidavits and evidence presented by petitioner, the Williams court concluded that what “petitioner’s present counsel is really objecting to is the trial strategy employed by trial counsel. We do not elect to second guess the trial strategy decisions of competent counsel.” Williams, 679 F.2d at 392. When a lawyer makes an informed choice between- alternatives, his tactical judgment will almost never be overturned on habeas corpus. Stanley v. Zant, 697 F.2d at 966. At the state court hearing, counsel for Griffin testified, and the state and district courts found, that counsel was familiar with Griffin’s background as a result of discussions with Griffin and an investigation by an associate in counsel’s law office. Moreover, the courts concur that counsel made a strategic decision not to present mitigating character and background testimony. Instead, counsel chose to present mitigating evidence that Griffin’s potential release, under a life imprisonment sentence, would not impose a threat of danger to the community. At the state court hearing, Griffin’s counsel testified: My decision, in this case, after living with it for a period of time and after seeing the testimony that had been presented, that, once the jury had made the" }, { "docid": "17135889", "title": "", "text": "as “trauma to the ... vagina” and an unusual dilation “of ... the vaginal canal ... that would tend to enhance the credibility of the female victim.” Although Dr. Smith did not testify what constitutes an unusual dilation, his reference to this subject matter establishes it within the knowledge of experts in child sexual abuse and therefore a proper matter for Dr. Underwager’s testimony. Considering Dr. Richardson’s reliance on “references” and Dr. Underwager’s knowledge regarding this subject matter, Dr. Underwager’s discussion of literature was proper defense rebuttal. Normal prepubertal vagina size was a critical issue in this case. The Government used two medical experts in its case-in-chief and one medical expert in rebuttal to testify about this specific matter. The defense challenged the medical authority and methodology to support the conclusions of the government experts. The relevance of the defense-proffered evidence is unquestionable, so the defense had a right to attack the scientific bases for these expert opinions. See generally Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). In view of the above circumstances, we conclude that the military judge erred as a matter of law when he refused to admit the proffered defense evidence solely on the basis that Doctor Underwager was not a medical doctor. See generally United States v. Crosby, 713 F.2d 1066, 1077 (5th Cir.), cert. denied, 464 U.S. 1001, 104 S.Ct. 506, 78 L.Ed.2d 696 (1983). The defense did not call this witness as a medical expert who would testify as to the physical condition of B’s vagina and the probable cause thereof. See People v. Byrd, 206 Ill.App.3d 996, 151 Ill.Dec. 905, 910, 565 N.E.2d 176, 181 (1990); State v. Stanley, 310 N.C. 353, 312 S.E.2d 482, 488-89 (1984); State v. Starnes, 308 N.C. 720, 304 S.E.2d 226, 233-34 (1983). Instead, he was called for the limited purpose of evidencing to the members the past and current state of the studies relied on by medical doctors and other professionals in the detection of child abuse. As the government expert had relied on “reference” authority to bolster her expert opinion" }, { "docid": "4486091", "title": "", "text": "129 at 131-132 (8th Cir. 1979): “it is not the function of an appellate court to try the case de novo, or to pass upon the credibility of witnesses or the weight to be given their testimony . .” Shull v. Dain, Kalman & Quail, Inc., 561 F.2d 152, 155 (8th Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). This is especially true where the case is primarily based upon oral testimony and where the trial judge has had an opportunity to view the demeanor and credibility of the witnesses. E. g., Snodgrass v. Nelson, 503 F.2d 94, 96 (8th Cir. 1974). Only in exceptional circumstances will a district court decision which turns on matters of credibility be reversed. NLRB v. Massachusetts Mach. & Stamping, Inc., 578 F.2d 15, 20 (1st Cir. 1978); Dillon v. M. S. Oriental Inventor, 426 F.2d 977, 978 (5th Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). Cf. Lide v. Carothers, 570 F.2d 253, 255-56 (8th Cir. 1978). The circumstances here were not exceptional. The district court chose to believe the testimony of Stanley and the corroboration of his testimony by two prison inmates. After carefully reviewing the record, we have concluded that the district court’s findings of fact are supported by substantial evidence. Furthermore, we are not left with a firm conviction that a mistake has been made. In fact, the correctness of the district court’s findings is enhanced, in our view, by the evidence offered by the defendants in the hearing held on their motion for a new trial. At that hearing, former inmate Joe White testified that immediately prior to Stanley’s first interrogation on July 30, 1975, he and Stanley engaged in a fight and he struck Stanley several times about the head and body. While White’s testimony is consistent with the testimony of the inmates that Stanley appeared to have been beaten up, it is inconsistent with the defendants’, Campbell’s and Duke’s testimony that Stanley showed no signs of having been assaulted. As the district court pointed out: The defendants," }, { "docid": "2673161", "title": "", "text": "to “permit Stanley to call three witnesses not listed on its initial witness list” who “would have directly impeached Baer’s testimony” regarding Roton’s maintenance of the confidentiality of its manufacturing processes. Stanley contends that these witnesses were proper either as direct or rebuttal witnesses. We review evidentiary rulings under an abuse of discretion standard. Munoz v. Strahm Farms, Inc., 69 F.3d 501, 503, 36 USPQ2d 1499, 1501 (Fed.Cir.1995) (citing Kearns v. Chrysler Corp., 32 F.3d 1541, 1547, 31 USPQ2d 1746, 1750 (Fed.Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1392, 131 L.Ed.2d 244 (1995)). In order for Stanley to obtain a new trial, it must show that the trial court abused its discretion in refusing to hear the testimony, and that this ruling challenged its substantial rights and were thus not harmless error. Id. See DeBiasio v. Illinois Cent. R.R., 52 F.3d 678, 685 (7th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 1040, 134 L.Ed.2d 188 (1996). As to the impeachment of Baer, from the affidavits of record, it is certainly not clear that these witnesses in fact would have impeached Baer. In fact, the testimony of Upjohn would have corroborated Baer because his affidavit indicates that he was not given access to “the room in which [Roton] made the extrusion dies employed to make the extrusions for the Roton hinges.” Accordingly, we conclude that the trial court did not err in refusing to admit the testimony of the three third parties. Even assuming that the district court erred in not allowing Stanley’s witnesses to testify, such error would have been harmless. The proffered testimony established only that certain third parties toured certain parts of the Roton plant. There is no indication that any specific or trade secret material was revealed on these tours. In fact, the extent of these tours is not provided and in one instance it is stated that the third party was prevented from having access to certain areas of the plant. This certainly indicates that Roton sought to protect any trade secret information. Accordingly, because the exclusion of the third party testimony did not" }, { "docid": "16799362", "title": "", "text": "in his report to the court, Dr. Garcia-Bunuel stated that, “[h]ad [Stanley] not been under the influence of a combination of alcohol, marijuana and cocaine, the alleged crimes would not have been committed in that his ability to conform his conduct to the requirements of the law would have been very seriously impaired.” At trial, Dr. Garcia-Bunuel testified that, “Defendant at the time of the commission of the alleged offense was under the influence of alcohol, marijuana, cocaine. He was not psychiatrically ill ... [and] was able to appreciate the difference between right and wrong as applied to his actions.” Similarly, Dr. Bindelglas concluded in his report to the court that, “[a]t the time of the offense ... the defendant’s ability to think clearly, reflect on the consequences of his actions and to control his activity were significantly impaired.” Neither expert testified regarding the cumulative effect of substance abuse on Stanley. But while the expert testimony during the guilt phase was clearly limited in its scope, Stanley provides no evidence to suggest what additional testimony would have been given by the experts if called during the sentencing phase to explain the cumulative effects of Stanley’s chronic substance abuse. Stanley argued in his state petition for post-conviction relief that trial counsel rendered ineffective assistance by failing to call mental health experts during the sentencing phase of trial. However, the state court did not address this issue. “[W]hen it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002) (citations and footnote reference omitted). Nevertheless, because Stanley failed to present evidence to support his contention, other than the evidence presented at trial, he has failed to establish that counsel rendered ineffective assistance in failing to present evidence to explain the cumulative effects of Stanley’s chronic substance abuse. See Cox v. Del Papa, 542 F.3d 669, 681 (9th Cir.2008) (“Without any specification of the mitigating evidence that counsel failed to unearth, [the petitioner’s] claim must fail.”) (citation omitted). Stanley has a stronger" }, { "docid": "16799357", "title": "", "text": "the time of the killing would not have been admissible to challenge premeditation. See Mott, 931 P.2d at 1051 (“Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.”). No prejudice is suffered when counsel declines to pursue the development of testimony that would be inadmissible at trial. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir.1999). Stanley attempts to re-frame the issue to avoid Arizona law limiting the admissibility of expert testimony on the issue of premeditation by describing the testimony as addressing “character traits.” An expert witness may testify as to “a person’s continuing general personality trait” (e.g., general tendency to act without reflection), but may not testify as to “a person’s probable state of mind at the time of the offense.” State v. Ortiz, 158 Ariz. 528, 764 P.2d 13, 18 (1988) (citation omitted). Stanley’s reliance on this proposition is misplaced because the testimony of Drs. Bindelglas and Garcia-Bunuel would not be that Stanley had a “character trait of impulsivity,” as argued by Stanley. Rather, Dr. Bindelglas would have testified that “a Dissociative Reaction is a spontaneous, involuntary event and so there were very substantial doubts that Stanley premeditated his actions, regardless of whether he met the legal test for insanity in Arizona.” This testimony directly conflicts with Arizona’s limitation on expert testimony. See id. at 18 (“An expert witness may not testify specifically as to whether a defendant was or was not acting reflectively at the time of a killing.”) (citation, alteration and emphasis omitted). Likewise, Dr. Garcia-Bunuel’s testimony would have focused impermissibly on the likelihood of a dissociative reaction “at the time of the killing of his wife and daughter.” In his subsequent declaration, in addition to opining that Stanley likely suffered a dissociative reaction, Dr. Garcia-Bunuel stated his “further opinion that as a result of [his Dissociative Reaction], it is highly probable that Stanley met the criteria for the M’Naughten standard of insanity.” Testimony to this effect would not have been barred, as Arizona allows" }, { "docid": "16799356", "title": "", "text": "bar. For example, Dr. Bindelglas, one of the expert witnesses, stated in an affidavit: Without regard to whether Stanley was insane under the requirements of Arizona law at the time the shooting of his wife and daughter occurred, there was a very real issue as to whether Stanley could premeditate his actions if they occurred during a Dissociative Reaction .... Had I been asked, I would have testified that a Dissociative Reaction is a spontaneous, involuntary event and so there were very substantial doubts that Stanley premeditated his actions, regardless of whether he met the legal test for insanity in Arizona. Dr. Bindelglas declared that access to the Hammitt interview would have provided corroboration for his conclusion that Stanley had suffered a dissociative reaction. Similarly, another expert witness, Dr. Garcia-Bunuel, stated in an affidavit that the Hammitt interview generated an “opinion that at the time of the killing of his wife and daughter, it is highly probable that Mr. Stanley was suffering from a Dissociative Reaction.” Expert testimony that Stanley suffered a dissociative reaction at the time of the killing would not have been admissible to challenge premeditation. See Mott, 931 P.2d at 1051 (“Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.”). No prejudice is suffered when counsel declines to pursue the development of testimony that would be inadmissible at trial. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir.1999). Stanley attempts to re-frame the issue to avoid Arizona law limiting the admissibility of expert testimony on the issue of premeditation by describing the testimony as addressing “character traits.” An expert witness may testify as to “a person’s continuing general personality trait” (e.g., general tendency to act without reflection), but may not testify as to “a person’s probable state of mind at the time of the offense.” State v. Ortiz, 158 Ariz. 528, 764 P.2d 13, 18 (1988) (citation omitted). Stanley’s reliance on this proposition is misplaced because the testimony of Drs. Bindelglas and Garcia-Bunuel would not be that" }, { "docid": "20723736", "title": "", "text": "is a sufficient basis for the opinion, and how that experience is reliably applied to the facts,” Fed.R.Evid. 702, advisory committee notes (2000 Amendments). Houston, however, only provides conclusory statements. For example, he “knows” more consumers would have reacted in the same way as those who complained on the internet, but he does not explain how he knows. When “presented with only the experts’ qualifications, their conclusions and their assurances of reliability,” it is not enough. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir.1995). A court is not required “to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Here, Houston’s overall conclusions are “so fundamentally unsupported that [they] can offer no assistance to the jury.” See Cole v. Homier Distrib. Co., Inc., 599 F.3d 856, 865 (8th Cir.2010) (citations omitted). After excluding Houston’s specific conclusions, all that is left is essentially an academic lecture about the importance of visual information in marketing — that “[a] picture is an effective way to convey product information.” Houston Rep. 10. “[W]here the subject matter is within the knowledge or experience of lay people, expert testimony is superfluous.” Pelster v. Ray, 987 F.2d 514, 526 (8th Cir.1993) (citing Ellis v. Miller Oil Purchasing Co., 738 F.2d 269, 270 (8th Cir.1984)). “Expert testimony is appropriate when it relates to ‘issues that are beyond the ken of people of ordinary experience.’ ” United States v. Clapp, 46 F.3d 795, 802 (8th Cir.1995). An expert’s testimony that pictures are important and convey product characteristics such as “size, shape, colors, and how the product can be enjoyed,” Houston Rep. 10-11, does not assist the jury. This is common sense and well within the knowledge or experience of lay people. For the reasons stated above, the expert testimony of Dr. Michael Houston is excluded. D. Dr. David Krauss Aviva retained" }, { "docid": "23486902", "title": "", "text": "and Heidelberg that at times he became emotionally disturbed, that various things set him off and that while he knew what he was doing he could not stop himself from doing it. Being subject to such an irresistible impulse does not render a person legally insane in Mississippi. However, this emotional impairment can be offered as a mitigating factor at the sentencing phase. To support this line of proof, Wright had Gray analyzed by a local psychiatrist, Dr. Bridges. Dr. Bridges, however, advised Wright that his testimony would not sup port Wright’s theory. Wright therefore decided to rely on a standardized personality test, the Minnesota Multiphasic Personality Inventory, which Gray had taken approximately nine years before trial. This test concluded that there was a 95% probability that Gray was mentally disturbed. Wright had discussed the validity of the test with Dr. Bridges and was aware that it was dated. He felt, however, that its conclusion would be clear to the lay jury and that it was the most persuasive piece of evidence available to the defense. To get this test admitted into evidence Wright made a deal with the prosecutor. The prosecutor would agree to let the test come into evidence if Wright would agree to let the state’s psychologist, Dr. Stanley, testify in rebuttal. Stanley had previously examined Gray to determine if he were competent to stand trial. Wright stated that he had wanted Stanley to testify since Stanley’s testimony could be used to establish that Gray was mentally disturbed. Although Wright did not interview Stanley before trial, he did review the reports which Stanley had compiled on Gray. Gray’s present counsel now faults the course pursued by Wright and Heidelberg for two reasons. First, he claims that their failure to interview certain witnesses prevented them from making an informed decision on what defenses to offer at the sentencing phase. Second, he claims that having chosen to argue only that Gray was mentally disturbed, Wright and Heidelberg failed to prepare adequately for Gray’s defense. He claims that these omissions deprived Gray of his right to the effective assistance of" }, { "docid": "23574113", "title": "", "text": "challenge to the ALJ’s decision to discount Juszczyk’s testimony and Dr. Stanley’s GAF assessment. Therefore, we will address these two points before addressing specifically the four arguments Juszczyk raises on appeal. A. The ALJ found Juszczyk’s testimony to be not wholly credible. The ALJ explained this determination was supported by evidence of Juszczyk’s work history. He was in and out of work for many years and also did not report earnings at a level indicating substantial gainful activity, even in the absence of an alleged disability. The ALJ also explained that the objective medical evidence, including clinical findings, did not support Juszczyk’s testimony as to the depth and severity of his physical impairments. We defer to the ALJ’s well-supported determination that Juszczyk’s testimony was not wholly credible. Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.2003); see also Casey v. Astrue, 503 F.3d 687, 696 (8th Cir.2007) (deferring to the ALJ’s credibility finding because the ALJ pointed to substantial evidence in the record supporting her decision to discount the claimant’s subjective allegations). Additionally, we note that Dr. Pulcher also doubted Juszczyk’s credibility and that Dr. King determined Juszczyk was not more than mildly limited. “If an ALJ explicitly discredits the claimant’s testimony and gives good reason for doing so, we will normally defer to the ALJ’s credibility determination.” Gregg, 354 F.3d at 714. B. The ALJ did not rely on Dr. Stanley’s assessment of Juszczyk’s mental limitations. ALJs are not obliged to defer to treating physician’s medical opinions unless they are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence in the record.” Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir.2005) (quotations omitted). The ALJ rejected Dr. Stanley’s assessment because it was inconsistent with Dr. Stanley’s own treatment notes, with objective testing, and with other medical evidence in the record. Our review of the record, including reports from Dr. Pulcher, Dr. King, Dr. Flageman, and the Truman Medical Center confirms the ALJ’s conclusion. Juszczyk argues that the ALJ rejected Dr. Stanley’s assessment based on credibility judgments, speculation, or lay opinion," }, { "docid": "16220422", "title": "", "text": "United States v. Finis P. Ernest, Inc., 509 F.2d 1256, 1263 (7th Cir.), cert. den., 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). We agree with the district court that the testimony in question was rebuttal, not impeachment. Frue-hauf s witnesses testified that they did not know of anyone in the Omaha area who covered the slider when painting; in other words, they admitted their lack of definitive knowledge on the subject. Thus, evidence of an Omaha painter that did cover the slider was rebuttal, not impeachment. Because Sterkel did not show good cause for such an unlisted rebuttal witness, the district court did not abuse its discretion in excluding the testimony under Local Rule 25(B)(2)(E). IV. Sterkel next argues that the district court erred in refusing to grant a mistrial. During Fruehauf’s case, two defense witnesses used a model assembled from new and used parts to demonstrate the operation of the slider. In the course of their demonstrations, both witnesses manipulated the pin in the hole on the model. Following a weekend recess, Sterkel’s counsel moved for a mistrial on the ground that the model was misleadingly dissimilar to Trailer 635. Counsel explained that, based on his measurements, the hole in the rails of the model allowed the pin three-twentieths of an inch more tolerance than the holes in the rails of the slider on Trailer 635. This would mislead the jury into doubting that a paint bond existed between the pin and the frame rail at the time of Sterkel’s injury. The district court denied the motion for a mistrial. Noting that Sterkel presented no evidence that the model actually differed from the slider on Trailer 635, the court issued a cautionary instruction to the jury stating that, “there is no claim that ... the space between the pin and the side of the hole on [the model is] exactly the same as the slider mechanism that was in the truck, and you should not consider that [it is the same].” In addition, the district court refused to allow the model to be used in the" }, { "docid": "16220420", "title": "", "text": "industry custom and practice is, in the abstract, a correct statement of Nebraska law. See McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545, 549 (1984). However, that does not establish plain error in refusing to give this requested instruction. Sterkel’s own witnesses had denied that there was a relevant industry custom and practice; thus, the district court could reasonably conclude that giving such an instruction “might have needlessly confused the jury.” Sandstrom v. Chicago & N.W. Transp. Co., 907 F.2d 839, 841 (8th Cir.1990). Given this testimony, it is obvious that Sterkel was not deprived of his right “to have an instruction setting forth [his] theory of the case presented to the jury if the instruction is legally correct and supported by the evidence.” Bursch v. Beardsley & Piper, 971 F.2d 108 (8th Cir.1992). In these circumstances, the district court did not commit plain error in refusing to give Sterkel’s requested instruction. III. Sterkel next contends that the district court erred in refusing to permit his rebuttal witness, a trailer painter, to testify that he always covers the rear wheel slider when he paints trailers, and that he had, at one time, painted trailers for Fruehauf in that manner. While not barring the witness from testifying, the district court excluded this testimony because Sterkel had failed to comply with Local Rule 25(B)(2)(E), which requires that all but impeachment witnesses be listed on the final pretrial order. Sterkel argues that this testimony was offered to impeach Frue-hauf witnesses and therefore the impeachment exception to that local rule should apply. A district court has broad discretion to decide whether to allow the testimony of witnesses not listed prior to trial. See Peterson v. General Motors Corp., 904 F.2d 436, 439 (8th Cir.1990). We will overturn a district court’s decision to exclude a witness only if there is a clear abuse of discretion. See Blue v. Rose, 786 F.2d 349, 351 (8th Cir.1986). Impeachment is an attack on the credibility of a witness, whereas rebuttal testimony is offered to explain, repel, counteract, or disprove evidence of the adverse party. See" }, { "docid": "15556256", "title": "", "text": "could testify that he saw biracial children living at Oak Manor. The district court declined to permit the individual’s testimony. The district court committed no error. It is a well-established rule in this circuit that district courts have broad discretion to exclude the testimony of a witness who was not disclosed prior to trial. See Blue v. Rose, 786 F.2d 349, 351 (8th Cir.1986); Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 897-98 (8th Cir.1978). In this case, the district court found that allowing the testimony of the witness would be unfairly prejudicial to the government. We agree. We also note that, notwithstanding counsel’s wife’s late remembrance, appellants have not provided a compelling reason for not listing the potential witness prior to trial. Finally, we believe that the substance of the proposed testimony is merely cumulative evidence. Multiple witnesses testified in support of appellants’ contention that they did not engage in a pattern and practice of racial discrimination. In view of the strength of the evidence against Big D and Dr. Dooley, it is rather implausible to suggest that the testimony of one additional defense witness would be outcome determinative. On more than one occasion, we have upheld a district court’s decision to disallow the testimony of an eleventh-hour rebuttal witness. See Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir.1992); Blue, 786 F.2d at 351; Admiral Theatre, 585 F.2d at 897-98. We find no reason to disturb the district court’s decision to exclude the testimony of a cumulative defense witness proffered well past the stroke of midnight. E. Statute of Limitations Appellants argue that the government’s claim is barred by the statute of limitations. Appellants failed to raise the statute of limitations argument until their posttrial motion for remittitur., A defense based upon the statute of limitations is generally waived if not raised in a responsive pleading. See Fed.R.Civ.P. 8(c); Myers v. John Deere Ltd., 683 F.2d 270, 273 (8th Cir.1982). Appellants offer no plausible justification for their failure to raise the statute of limitations defense in a responsive pleading. Accordingly, we agree with the district" }, { "docid": "23574109", "title": "", "text": "his “[psychological] problems alone do not appear severe enough to prevent [him] from performing at least less demanding tasks.” A vocational expert testified in response to two hypothetical questions the ALJ posed. The first question included physical limitations of a nature and extent expressed by Dr. Liberman and not as severe as Juszczyk’s testimony indicated. This question also included mental limitations of the same nature and extent as those Dr. Pulcher reported, which were less severe than Dr. Stanley and Juszczyk indicated. In response to this, the vocational expert testified there are numerous jobs in the state and national economies Juszczyk could perform. The second hypothetical question included more serious physical and mental limitations, based on Juszczyk’s testimony and Dr. Stanley’s assessment. In response to this question, the vocational expert testified there would not be any jobs in the national economy Juszczyk could perform. Based on the record and testimony presented at the administrative hearing, the ALJ determined Juszczyk was not disabled and that he was not precluded from working in jobs that existed in significant numbers. The ALJ determined whether Juszczyk was disabled using the regulatory five-step evaluation process. See 20 C.F.R. § 416.920(a)(4); Davidson v. Astrue, 501 F.3d 987, 988 (8th Cir.2007). In reaching this determination, the ALJ considered the evidence described above. The ALJ found Juszczyk to be only partially credible, based on evidence that he had been in and out of the work force and had earnings below a level of substantial gainful activity for many years, even in the absence of an alleged disability. Additionally, the ALJ noted that the objective medical evidence did not support Juszczyk’s allegations as to the depth and severity of his physical impairments. The ALJ also found Dr. Stanley’s GAF assessment to be incredible, noting that if the assessment were true, Juszczyk would require hospitalization, and noting it was inconsistent with 90% of Dr. Stanley’s records, which the ALJ found classified Juszczyk’s symptoms as mild to moderate. Based on the evidence, the ALJ determined Juszczyk’s residual functional capacity. A residual functional capacity assessment determines what claimants would be capable of" }, { "docid": "16799380", "title": "", "text": "head trauma he suffered as a child, and his chronic substance abuse from an early age. It is true that in his Petition to the district court, Stanley referred specifically to his lawyer’s failure to present the mental health experts’ conclusions regarding his substance abuse. However, the underlying claim— ineffective assistance based on failure to present expert witness testimony on impaired capacity (ARS § 13-703(G)(1)) — includes more than just that one type of evidence, and was raised in the district court. Moreover, even if I were to accept the majority’s view on this issue, I would still find that justice requires us to include it in our review. Waiver, after all, is not a jurisdictional limitation, and we retain discretion to consider issues for the first time on appeal. See, e.g., Myers v. Merrill Lynch & Co., 249 F.3d 1087, 1088 (9th Cir.2001); Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693 (9th Cir.1980). The state was not prejudiced in its ability to respond to this issue and vigorously argued it on appeal. Second, the majority rejects Stanley’s claim of ineffective assistance for failure to present evidence to explain the cumulative effects of Stanley’s chronic substance abuse, because “he has failed to present evidence to support his contention, other than the evidence presented at trial.” Majority Op. 622, citing Cox v. Del Papa, 542 F.3d 669, 681 (9th Cir.2008) (“Without any specification of the mitigating evidence that counsel failed to unearth, [the petitioner’s] claim must fail.”) (citation omitted). I disagree. Stanley has argued that his counsel provided ineffective assistance at sentencing because, “[a]lthough a few witnesses did testify very briefly about drug use, there was no testimony ... to explain, from a scientific standpoint, how the drug and alcohol abuse could have affected his actions on the night of the crime.” That is enough suggestion of “what additional testimony would have been given by the experts” to make out a colorable claim of prejudice and to entitle Stanley to a hearing on the matter. Majority Op. 622. See Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.1999)" } ]

[ { "docid": "1955838", "title": "", "text": "Schoemer be referred to an internal medicine clinic. Instead, Dr. Magliolo, the Chief Medical Officer, pronounced Schoemer eligible for duty and did not recommend any treatment. Schoemer was diagnosed as having acromegaly eleven months later. He alleges that the delay in treatment has caused him significant injury. The Schoemers brought an FTCA suit against the United States which moved to dismiss citing Feres. Initially, the court denied the motion citing our decisions in Jones v. United States, 729 F.2d 326 (5th Cir.1984), and Adams v. United States, 728 F.2d 736 (5th Cir.1984). On cross motions for summary judgment, however, the court changed its mind and applied Feres. Consequently, the court did not consider the summary judgment motions because it dismissed the case for lack of subject matter jurisdiction. DISCUSSION The Supreme Court created a judicial exception to the FTCA for injuries to servicemen that arise from the course of activity incident to service. Feres, 340 U.S. at 146, 71 S.Ct. at 159. Three rationales support the exception: (1) the “distinctively federal” relationship between a serviceman and his superiors; (2) the ability of servicemen to receive no-fault statutory disability and death benefits; and (3) the need to preserve military discipline and prevent judicial second guessing of military decisions. United States v. Johnson, 481 U.S. 681, 688-91, 107 S.Ct. 2063, 2067-69, 95 L.Ed.2d 648 (1987). Whether Feres applies to deprive a court of subject matter jurisdiction is a question of law, which we review de novo. Miller v. United States, 42 F.3d 297, 300 (5th Cir.1995). Feres applies if the serviceman’s injury was incident to military service. Johnson, 481 U.S. at 691, 107 S.Ct. at 2069. We examine the totality of the circumstances to determine whether a serviceman’s injury was incident to military service. Parker v. United States, 611 F.2d 1007, 1013 (5th Cir.1980). In particular, we consider: (1) the serviceman’s duty status; (2) the site of his injury; and (3) the activity he was performing. Id. at 1013-15. We often treat the serviceman’s duty status as the most important factor because it indicates the nature of the nexus between the serviceman" } ]

[ { "docid": "9458015", "title": "", "text": "not for an interpretation of statute but rather a “judicially created exception” to the FTCA. Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 674, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (Marshal, J., dissenting); Schoemer v. United States, 59 F.3d 26, 28 (5th Cir.1995); Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir.2000); Romero by Romero v. United States, 954 F.2d 223, 224 (4th Cir.1992). This judicial re-writing runs against our basic separation of powers principles and complicates a equal protection analysis of the resulting Feres doctrine. See THE FEDERALIST NO. 47 (James Madison) (“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator”) (quoting Montesquieu); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (“Courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices”); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194-195, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (“Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto.”) I do not suggest that judges never alter legislation, but that they should never overrule the plain language of Congress unless there is a constitutional violation. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-79, 2 L.Ed. 60 (1803). Although the Constitution clearly delegates law-making activities to the legislature and law-interpreting activities to the judiciary, the reality of our judicial system is that courts must occasionally take more active roles in order to interpret an ambiguous statute, Comm’r of Internal Revenue v. Asphalt Prods. Co., Inc., 482 U.S. 117, 121, 107 S.Ct. 2275," }, { "docid": "9458014", "title": "", "text": "117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). This standard “does not allow us to substitute our personal notions of good public policy for those of Congress.” Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). It is not for “the judiciary [to] sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). See also United States v. Johnson, 481 U.S. 681, 702, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) (arguing that the only possible justification for the chaos created by the Feres doctrine would be if it reflected a decision grounded in the democratic process). When considering the Feres doctrine, however, we are not dealing with a legislative action, but rather with a judicial rewriting of an unambiguous and constitutional statute. Even to the courts that have considered it, the Feres decision stands not for an interpretation of statute but rather a “judicially created exception” to the FTCA. Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 674, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (Marshal, J., dissenting); Schoemer v. United States, 59 F.3d 26, 28 (5th Cir.1995); Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir.2000); Romero by Romero v. United States, 954 F.2d 223, 224 (4th Cir.1992). This judicial re-writing runs against our basic separation of powers principles and complicates a equal protection analysis of the resulting Feres doctrine. See THE FEDERALIST NO. 47 (James Madison) (“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator”) (quoting Montesquieu); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (“Courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices”); Tenn." }, { "docid": "18061747", "title": "", "text": "question whether the Feres doctrine is applicable to the facts reflected in the record.” Persons v. United States, 925 F.2d 292, 294 (9th Cir.1991) (citation and internal quotation marks omitted). Discussion I. The FTCA waives the federal government’s sovereign immunity, rendering the United States liable “in the same manner and to the same extent as a private individual under like circumstances.... ” 28 U.S.C. § 2674; see also 28 U.S.C. § 1346(b)(1). In 1950, however, the Supreme Court carved out a judicial exception to the FTCA, holding in Feres v. United States that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). It subsequently extended this principle— known informally as the “Feres doctrine” — in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), to bar third-party claims which derive directly or indirectly from injuries to service members incident to military duty. See id. at 673, 97 S.Ct. 2054 (“where the case concerns an injury sustained by a soldier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party”). The Feres doctrine is rooted in three policy rationales: (1) the distinctively federal nature of the relationship between the government and members of its armed forces, which argues against subjecting the government to liability based on the fortuity of the situs of the injury; (2) the availability of alternative compensation systems; and (3) the fear of damaging the military disciplinary structure. Id. at 671-72, 97 S.Ct. 2054; Persons v. United States, 925 F.2d 292, 294-95 (9th Cir.1991). For the past sixty-three years, the Feres doctrine has been criticized by “countless courts and commentators” across the jurisprudential spectrum. Id. at 295; see also United States v. Johnson, 481 U.S. 681, 700, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) (“Feres was wrongly" }, { "docid": "20052048", "title": "", "text": "a path that they were ultimately unwilling to follow. Because key questions of military discipline often seem to involve the government’s control of the tortfeasor rather than the victim, the Feres analysis over time, came to focus as much on the relationship between the military and the injurer as it did on the relationship between the military and the injured plaintijf. This view of discipline is evident, if not necessarily determinative, in case after case in which courts found a Feres bar. But any discipline rationale that focuses on the relationship of the tortfeasor to the government has a fundamental flaw — namely, that the same acts, by the same injurer, in the same disciplinary relationship to the government, lead without question, to government FTCA liability when the victim is a civilian. See Johnson, 481 U.S. at 700, 107 S.Ct. at 2074 (Scalia, J., dissenting); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 676-77, 97 S.Ct. 2054, 2060, 52 L.Ed.2d 665 (Marshall, J., dissenting). Feres bars the suit only if the injured party is a member of the military. This inherent conflict was bound to surface sooner or later. Ironically, it did not emerge in a case where the claimant was a civilian and severe military discipline issues between the government and the military injurer were, nonetheless, at stake. Rather, it appeared in a ease involving a member of the armed services whose estate sued the government for FTCA respondeat superior liability on account of the alleged negligence of civilians. See United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987). In Johnson, the victim was a Coast Guard helicopter pilot on a rescue mission and was killed due to a radar mishap for which the Federal Aviation Administration was responsible. Id. at 683, 107 S.Ct. at 2065. The decedent was on active duty, and so the government argued Feres. The Eleventh Circuit concluded, however, that since the injurer was not in the military, no issues of discipline (by now seemingly the dominant rationale for the Feres) were at play. Id. at 684-85, 107" }, { "docid": "9458026", "title": "", "text": "580, 598 (D.C.Cir.1980) (“[G]iven the Supreme Court’s inconsistent treatment of this factor, it cannot be said that the presence of an alternative compensation system either explains or justifies the Feres doctrine; it only makes the effect of the doctrine more palatable.”). Cf. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 449-50, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (finding that an ordinance did not pass rational basis scrutiny where the proffered justification was too attenuated from the classification). The Court stated that this rationale of the distinctively federal relationship was “no longer controlling” in Shearer, 473 U.S. at 58 n. 4, 105 S.Ct. 3039, before reviving it in Johnson, 481 U.S. at 688-90, 107 S.Ct. 2063. The Court gave the third Feres rationale the same treatment. See Shearer, 473 U.S. at 58 n. 4, 105 S.Ct. 3039; Johnson, 481 U.S. at 688-90, 107 S.Ct. 2063. This rationale reasoned that, despite the plain language of the FTCA, Congress did not intend to allow military personnel to recover under the FTCA when they were guaranteed recovery under the Veterans Benefit Act (“VBA”), 38 U.S.C. § 301. Feres, 340 U.S. at 144. In fact, however, “both before and after Feres [the Court] permitted injured servicemen to bring FTCA suits, even though they had been compensated under the VBA.” Johnson, 481 U.S. at 697, 107 S.Ct. 2063 (citing Brooks v. United States, 337 U.S. 49, 53, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) and United States v. Brown, 348 U.S. 110, 111, 75 S.Ct. 141, 99 L.Ed. 139 (1954)). See also Sidley v. United States Dep’t of Navy, 861 F.2d 988 (6th Cir.1988) (holding that Feres barred claim even though serviceman had been denied veteran’s benefits), Cf. Cleburne, 473 U.S. at 449-50, 105 S.Ct. 3249 (holding that an ordinance failed the rational basis test where the stated policy objectives were not met by the challenged classification). It was only in cases after Feres that the Court articulated its dominant explanation for the Feres doctrine — the possibly negative effect on military discipline and decision-making. Brown, 348 U.S. at 112, 75 S.Ct." }, { "docid": "9458011", "title": "", "text": "write to demonstrate that the Feres doctrine is unconstitutional and to present the Supreme Court with a case and controversy in order for it to be able to review the doctrine. See United States v. Johnson, 481 U.S. 681, 692, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting). I believe that the Feres doctrine'violates the equal protection rights of military service men and women. I also believe that Feres violates our constitutional separation of powers. In passing the Federal Tort Claims Act (FTCA), Congress chose to place all Americans on an equal footing in litigating the civil liability of the federal government for claims of tort injuries. 28 U.S.C. § 1346. From this unprecedented, albeit limited, waiver of sovereign immunity, Congress excluded claims arising out of a number of government activities, including “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680(j). This exception of liability for injuries in times of war was expanded by the Feres doctrine to all injuries of military personnel “where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). This doctrine represents judicial legislation, effectively negating the Congressional limitations that the excluded claims must arise from “combatant activities ... during time of war.” 28 U.S.C. § 2680(j). The doctrine effectively declares that the members of the United States military are not equal citizens, as their rights against their government are less than the rights of their fellow Americans. This judicially-created classification runs afoul of the Equal Protection clause of the 14th and 5th Amendments. Clearly, had Congress barred all claims by members of the military it would have been within its constitutional powers to do so. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 66-67, 83, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (holding that Congress acted within its constitutional authority in authorizing the military registration of men but not women). Indeed, as the Feres court" }, { "docid": "21567128", "title": "", "text": "arise out of or are in the course of activity incident to service.” Accord United States v. Johnson, — U.S. -, 107 S.Ct. 2063, 2066-67, 95 L.Ed.2d 648 (1987) (Feres doc trine bars “all suits on behalf of service members against the Government based upon service-related injuries”); see also United States v. Stanley, — U.S. -, 107 S.Ct. 3054, 3057, 95 L.Ed.2d 648 (1987); Madsen v. United States ex rel. United States Army, 841 F.2d 1011, 1012 (10th Cir.1987); Martelon v. Temple, 747 F.2d 1348, 1351 (10th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985); LaBash, 668 F.2d at 1154. This judicially created exception is informally known as the Feres doctrine. Atkinson v. United States, 825 F.2d 202, 204 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988). In formulating the Feres doctrine, the Supreme Court noted that historically, “the relationship of military personnel to the Government has been governed exclusively by federal law.” Feres, 340 U.S. at 146, 71 S.Ct. at 159. The Court then opined: “We do not think that Congress, in drafting [the FTCA], created a new cause of action dependent on local law for service-connected injuries or death due to negligence.” Id. The Court also found persuasive the fact that “most states have abolished the common-law action for damages between employer and employee and superseded it with workmen’s compensation statutes which provide, in most instances, the sole basis of liability.” Id. at 143, 71 S.Ct. at 158. According to the Court, recoveries under the military compensation system, i.e., payments by the Veterans Administration, “compare extremely favorably with those provided by most workmen’s compensation statutes.” Id. at 145, 71 S.Ct. at 159. The Supreme Court later identified the three rationales underlying the Feres doctrine. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977); see also Johnson, 107 S.Ct. at 2065 n. 2, 2068-69; Chappell v. Wallace, 462 U.S. 296, 299, 103 S.Ct. 2362, 2365, 76 L.Ed. 2d 586 (1983); accord Madsen, 841 F.2d at 1013; Walls" }, { "docid": "17086365", "title": "", "text": "Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). B. Incident to Service Test In Feres, the Supreme Court created a judicial exception to the broad waiver of sovereign immunity in the Federal Tort Claims Act (FTCA). See 340 U.S. at 146, 71 S.Ct. 153. The federal government cannot be liable under the FTCA “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. The Supreme Court subsequently applied the exception created in Feres to damage actions under Bivens. See Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Relying on language in Feres, courts have applied the “incident to service” test. Originally, this test was cast in narrow terms, barring enlisted military personnel from bringing FTCA claims against a superior officer. See id. at 305, 103 S.Ct. 2362. In subsequent cases, the federal courts have expanded the reach of the Feres doctrine. See, e.g., United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (applying Feres to bar Bivens claims for damages against military and civilian officials for injuries resulting from the military’s intentional administration of LSD to unwitting volunteer); United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (applying Feres to bar an FTCA claim against the United States alleging negligence by civilian employees of the Federal Aviation Administration); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (applying Feres to FTCA claim arising from the decedent servicemember’s murder committed by a fellow service-member which occurred off-duty and off-base); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (applying Feres to bar defendant corporation’s cross-claim against United States for indemnification of ser-vicemember’s injuries arising from military activities); Pringle v. United States, 208 F.3d 1220 (10th Cir.2000) (per curiam) (applying Feres to an FTCA claim for injuries sustained from a beating after plaintiff servicemember was ejected from a military club); Quintana, 997 F.2d 711" }, { "docid": "9713180", "title": "", "text": "at 146, 71 S.Ct. at 159, quoted in United States v. Johnson, — U.S.-, 107 S.Ct. 2063, 2066, 95 L.Ed.2d 648 (1987). The Court grounded its ruling on the fact that relations between the government and its military personnel were “distinctively federal in character,” exclusively governed by federal law, and that a comprehensive, even-handed government compensation scheme was available for service-connected injuries. Feres, 340 U.S. at 143-45, 71 S.Ct. at 158-59. Later Supreme Court decisions emphasized the effect that private lawsuits might have on military discipline. See, e.g., United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977). In cases arising under the Federal Tort Claims Act, we have viewed the Feres doctrine as a limitation on the jurisdiction of the courts. Atkinson v. United States, 825 F.2d 202 (9th Cir.1987); Millang v. United States, 817 F.2d 533, 534-35 (9th Cir.1987); Bon v. United States, 802 F.2d 1092, 1094 (9th Cir.1986); Broudy v. United States, 661 F.2d 125, 128 n. 5 (9th Cir.1981); Monaco v. United States, 661 F.2d 129, 131 (9th Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). Although Feres itself did not compel dismissal for lack of subject matter jurisdiction, such a result comports with the development of the doctrine, which has grown as a judgemade exception to the Federal Tort Claims Act’s (FTCA’s) waiver of sovereign immunity. In contrast to Atkinson, Millang, Bon, Broudy, and Monaco, Stauber’s action does not depend on any waiver of the sovereign immunity of the United States to establish jurisdiction. He brought his action in state court against the individual defendants, and federal jurisdiction was acquired by removal. Although Stauber makes no point of this distinction, it has a potential effect on the jurisdictional question. When Feres is applied as an exception to Congress’s waiver of sovereign immunity in the Federal Tort Claims Act, it is an easy step to say that the exception takes the case out of the waiver," }, { "docid": "9458025", "title": "", "text": "including the “trans-mifssion of] postal matter, 28 U.S.C. § 2680(b), collection of] taxes or custom duties, § 2680(c), imposition of] quarantines, § 2680(f), [and regulation of] the monetary system, § 2680(f).” Johnson, 481 U.S. at 694, 107 S.Ct. 2063 (Scalia, J., dissenting). This rationale was also rejected by the Court in subsequent FTCA cases. Rayonier Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Indian Towing, 350 U.S. at 66-69, 76 S.Ct. 122. The second justification was the “distinctively federal” relationship between the Government and the military that risked being supplanted by local tort law. Putting aside the Court’s preference for “uniform nonrecovery” over “nonuniform recovery,” Johnson, 481 U.S. at 695-96, 107 S.Ct. 2063, Justice Scalia observed that “we have effectively disavowed this ‘uniformity’ justification ... by permitting servicemen to recover under the FTCA for injuries suffered not incident to service, and permitting civilians to recover for injuries caused by military negligence.” Id. at 696, 107 S.Ct. 2063 (emphasis in original). See also Hunt v. United States, 636 F.2d 580, 598 (D.C.Cir.1980) (“[G]iven the Supreme Court’s inconsistent treatment of this factor, it cannot be said that the presence of an alternative compensation system either explains or justifies the Feres doctrine; it only makes the effect of the doctrine more palatable.”). Cf. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 449-50, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (finding that an ordinance did not pass rational basis scrutiny where the proffered justification was too attenuated from the classification). The Court stated that this rationale of the distinctively federal relationship was “no longer controlling” in Shearer, 473 U.S. at 58 n. 4, 105 S.Ct. 3039, before reviving it in Johnson, 481 U.S. at 688-90, 107 S.Ct. 2063. The Court gave the third Feres rationale the same treatment. See Shearer, 473 U.S. at 58 n. 4, 105 S.Ct. 3039; Johnson, 481 U.S. at 688-90, 107 S.Ct. 2063. This rationale reasoned that, despite the plain language of the FTCA, Congress did not intend to allow military personnel to recover under the FTCA when they were" }, { "docid": "21580186", "title": "", "text": "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146, 71 S.Ct. at 159. Since its inception, the Feres doctrine has been broadly and persuasively applied by federal courts and has now stood for nearly four decades without either legislative or significant judicial alteration. Indeed, the Supreme Court has consistently reaffirmed the Feres doctrine. See, e.g., United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). It is well established that receipt of medical care in military facilities by members of the military on active duty is “activity incident to service” and thus a lawsuit against the United States arising from medical treatment of a service member on active duty is barred under Feres. Rayner v. United States, 760 F.2d 1217 (11th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 149, 88 L.Ed.2d 123 (1985); Buckingham v. United States, 394 F.2d 483 (4th Cir.1968). The government maintains that the alleged unmonitored overdose of Dilantin began with medical treatment Kendrick was provided while on active duty, and the same course of treatment was continued after he was placed on the TDRL and was incident to his military service and thus barred by Feres. Kendrick contends that when placed on the Army’s TDRL he was “discharged, separated and retired” from active duty and relieved of military obligations, and any negligent treatment received while on TDRL was not “incident to service” nor barred by Feres. According to Kendrick, the injury occurred because of the failure to monitor while he was on the Army’s TDRL and therefore should be considered separate and distinct from his initial injury and treatment. The Temporary Disability Retired List was established under the authority of 10 U.S.C. § 1202 and implemented pursuant to Chapter 7" }, { "docid": "1786397", "title": "", "text": "of intra-military immunity barred Bivens damages claims. Chappell, 462 U.S. at 304, 103 S.Ct. at 2367. Without exception, in other post-Feres cases, the Court has adhered to the compelling necessity of maintaining military discipline as the basis for expanding the intra-military immunity doctrine to encompass a variety of claims, against an assortment of defendants, brought by a range of servicemen, for injuries arising out of, or in the course of activity incident to, military service. See United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (Feres “incident to service” test equally applicable in Bivens cases brought by serviceman against military officers and civilians); United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (barring FTCA claim against civilian defendant by widow of serviceman killed in rescue mission); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (barring FTCA claim against United States arising from murder of off-duty serviceman by another serviceman); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (barring claim for indemnification against United States brought by a government contractor in a negligence suit filed by a National Guardsman on a training mission). Following the Supreme Court’s rationale in those cases, in defining the scope of the Feres doctrine we too have recognized the adverse impact on military discipline inherent in the judicial review of military orders and have sought to avoid it. In Jaffee v. United States, 663 F.2d 1226, 1239 (3d Cir.1981), we held that the Feres doctrine extends to bar a federal serviceman’s state law intentional tort claim against his Army supervisors. We recognized two potential consequences of permitting suits for service injuries: their effect on the willingness of military personnel to follow the directions of their superiors and the concomitant chilling effect that the concern of being called into civilian court may have on the discharge of the decision-making duties of military authorities. Id. at 1232. Of particular significance to the matter presently before us, we noted in Jaffee that “[sjuits founded" }, { "docid": "17086366", "title": "", "text": "107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (applying Feres to bar Bivens claims for damages against military and civilian officials for injuries resulting from the military’s intentional administration of LSD to unwitting volunteer); United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (applying Feres to bar an FTCA claim against the United States alleging negligence by civilian employees of the Federal Aviation Administration); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (applying Feres to FTCA claim arising from the decedent servicemember’s murder committed by a fellow service-member which occurred off-duty and off-base); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (applying Feres to bar defendant corporation’s cross-claim against United States for indemnification of ser-vicemember’s injuries arising from military activities); Pringle v. United States, 208 F.3d 1220 (10th Cir.2000) (per curiam) (applying Feres to an FTCA claim for injuries sustained from a beating after plaintiff servicemember was ejected from a military club); Quintana, 997 F.2d 711 (applying Feres to reserve servicemem-ber’s medical malpractice FTCA claim for injuries sustained from military training). Courts have broadened the scope of the incident to service test to encompass injuries that are attenuated from the servicemember’s duty status. In Pringle, this court stated: In recent years, the Supreme Court has broadened Feres, to the point where it now encompasses, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual’s status as a member of the military. Courts applying the Feres doctrine have given a broad reach to Feres ’ “incident to service” test and have barred recovery by members of the armed services for injuries that at first blush may not have appeared to be closely related to their military service or status. Practically any suit that implicates the military’s judgments and decisions runs the risk of colliding with Feres. 208 F.3d at 1223-24 (quotations, citations, and alterations omitted). As a result of the broad application of the incident to service test, “the Feres doctrine has been applied consistently" }, { "docid": "9458023", "title": "", "text": "has lead to very unequal applications even within the military. See, e.g., Anne R. Riley, United States v. Johnson: Expansion of the Feres Doctrine to Include Service-members’ FTCA Suits Against Civilian Government Employees, 42 Vand. L. Rev. 233, 266-67 (1989) (“Consistent in denying recovery, the Court is embarrassingly inconsistent in how it arrives at this result”); Martha J. Burns, They Fight to Protect Our Rights; Shouldn’t we do the Same for Them? Intramilitary Immunity in Light of United States v. Stanley, 38 Depaul L. Rev. 127, 154 (Fall, 1988) (“If the Supreme Court had established a definition for 'incident to service’ in this case, it would have negated the problems that result from the inconsistent definitions and applications of the term”). Compare, e.g., Ricks v. United States, 842 F.2d 300 (11th Cir.1988) (Feres barred claim for death of serviceman on temporary disability retired list), and Cortez v. United States, 854 F.2d 723 (5th Cir.1988) (Feres did not bar claim for death of serviceman on temporary disability retired list). Even if we were to apply a rational basis analysis — the most lenient of equal protection inquiries — to the Feres doctrine, the Court’s jurisprudence in this area over the past fifty years defies this approach. In the last case to directly address Feres, United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), Justice Scalia, in a dissent joined by Justices Brennan, Marshall, and Stevens, thoroughly and articulately rebutted the four most common justifications for the continued application of the Feres doctrine. Johnson, 481 U.S. at 692-703, 107 S.Ct. 2063 (Scalia, J., dissenting). Not only is each justification belied by reality and the language of the FTCA, but each justification has, at various points, been discredited by the Court. The first justification proffered by Feres was that there was no parallel private right of action whereby military members could sue their employer. Feres, 340 U.S. at 141-42, 71 S.Ct. 153. This ignores other provisions of the FTCA, however, which opened to liability a number of areas where parallel private rights of action did not previously exist," }, { "docid": "9713179", "title": "", "text": "immune from suit. Id. at 5. The court therefore set aside judgment on the verdict and dismissed Stauber’s action. DISCUSSION I. WAIVER OF FERES IMMUNITY Stauber argues that the district court erred in considering Feres immunity because defendants failed to raise the issue as an affirmative defense. The district court adopted defendants’ position that the immunity could not be waived because it is an issue of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see Jablonski by Pahls v. United States, 712 F.2d 391, 394-95 (9th Cir.1983); Beers v. Southern Pac. Transp. Co., 703 F.2d 425, 429 (9th Cir.1983). We review de novo the district court’s decision to consider appellees’ late claim of intramilitary immunity. E.g., United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). In Feres v. United States, the Supreme Court held that members of the armed services could not sue the government for injuries that “arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159, quoted in United States v. Johnson, — U.S.-, 107 S.Ct. 2063, 2066, 95 L.Ed.2d 648 (1987). The Court grounded its ruling on the fact that relations between the government and its military personnel were “distinctively federal in character,” exclusively governed by federal law, and that a comprehensive, even-handed government compensation scheme was available for service-connected injuries. Feres, 340 U.S. at 143-45, 71 S.Ct. at 158-59. Later Supreme Court decisions emphasized the effect that private lawsuits might have on military discipline. See, e.g., United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977). In cases arising under the Federal Tort Claims Act, we have viewed the Feres doctrine as a limitation on the jurisdiction of the courts. Atkinson v. United States, 825 F.2d 202 (9th Cir.1987); Millang v. United States, 817 F.2d 533, 534-35 (9th Cir.1987); Bon v. United States, 802 F.2d 1092, 1094 (9th" }, { "docid": "3941023", "title": "", "text": "three cases has come to be known, is highly controversial. It has been criticized “by countless courts and commentators,” including this court. Persons, 925 F.2d at 295. Some have found fault with the Court’s creation of a judicial exception to a clear statutory pronouncement and the unfairness that the rule has often produced. See, e.g., United States v. Johnson, 481 U.S. 681, 700, 107 S.Ct. 2063, 2074, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting and joined by Brennan, Marshall, and Ste vens, JJ.) (“Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.”) (citation omitted); id. at 703, 107 S.Ct. at 2075 (urging Court to “limit our clearly wrong decision in Feres and confine the unfairness and irrationality that decision has bred”); Atkinson, 825 F.2d at 206; id. at 206-07 (Noonan, J., concurring); Atkinson, 804 F.2d 561 (9th Cir.1986), withdrawn by, 825 F.2d 202. Others have found fault with the essential vagueness and ambiguity of the doctrine itself. See, e.g., Millang v. United States, 817 F.2d 533, 535 (9th Cir.1987) (per curiam) (noting the “somewhat elusive ‘incident to service’ standard”), cert. denied, 485 U.S. 987, 108 S.Ct. 1290, 99 L.Ed.2d 500 (1988); Monaco v. United States, 661 F.2d 129, 132 (9th Cir.1981) (noting that “the basis for the exception has recently become the subject of some confusion”), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); Persons, 925 F.2d at 295 (citing Millang and Monaco and noting that “it is entirely unclear which of the doctrine’s original justifications survive”). A comparison of reasoning with outcomes in cases that have applied the doctrine validates these concerns: the results have not flowed easily from the doctrine’s purported rationales. Nonetheless, the Feres doctrine remains the law of the land, and we must undertake to apply it. B In the Feres case itself, the Supreme Court enunciated two rationales for the “intramilitary immunity” exception to the FTCA’s waiver. Twenty-seven years later, the Court enunciated a third. See Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977)." }, { "docid": "18605932", "title": "", "text": "of subject matter jurisdiction. Upon review, we find that the magistrate properly granted the United States’ dismissal motion. I. The Federal Tort Claims Act (FTCA) allows civil actions against the United States [ f]or injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA provides remedies for wrongful government action in those cases where the statutory waiver of sovereign immunity applies. An exception to the liability imposed by the FTCA has been created by judicial decision, however. The Supreme Court concluded that the government is not liable for injuries that arise out of or are in the course of activity “incident to [military] service.” Feres, 340 U.S. at 146, 71 S.Ct. at 159. The “Feres doctrine” has been consistently applied by the Court. See United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). The Supreme Court has delineated three broad rationales underlying the Feres doctrine: First, “[t]he relationship between the Government and members of its armed forces is ‘distinctively federal in character.’ ” ... Where a service member is injured incident to service — that is, because of his military relationship with the Government — it “makes no sense to permit the fortuity of the situs of the alleged negligence to affect the liability of the Government to [the] serviceman.” Second, the existence of these generous statutory disability and death benefits is an independent reason why the Feres doctrine bars suit for service-related injuries.... Those injured during the course" }, { "docid": "11035027", "title": "", "text": "and individual Guard personnel, the Feres doctrine will bar the action. See, e.g., Watson v. Arkansas Nat’l. Guard, 886 F.2d 1004, 1007 (8th Cir.1989); Brown v. United States, 739 F.2d 362, 367 (8th Cir.1984), cert. denied, 473 U.S. 904, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985). In addition, in Lovell v. Heng, 890 F.2d 63 (8th Cir.1989), the court held that the Feres doctrine barred a claim brought under § 1985. In addition to barring suits based on statutes other than the FTCA, the Feres doctrine has been expanded in subsequent case law to immunize federal civilian employees as well as military personnel from actions for injuries arising from military service. In United States v. Johnson, 481 U.S. 681, 682, 107 S.Ct. 2063, 2064, 95 L.Ed.2d 648 (1987), the Court considered whether the Feres doctrine “bars an action under the FTCA on behalf of a service member killed during the course of an activity incident to service, where the complaint alleges negligence on the part of civilian employees of the Federal Government.” The Court examined the three broad rationales underlying the Feres doctrine, finding each supported holding that the doctrine barred a suit against civilian employees of the federal government. First, the Court found that allowing a claimant to recover merely because of the “fortuity of the situs of the alleged negligence” made no sense. Id. at 689, 107 S.Ct. at 2068. Rather, the Court found that the federal character of the relationship between the federal government and members of armed services directed that the federal remedy for injuries arising from this relationship be “simple, certain, and uniform.” Id. Second, the Court noted the existence of statutory disability and death benefits available under the Veteran Benefits Act. These “swift and efficient” statutory veterans’ benefits “provid[e] an upper limit of liability for the Government as to service-connected injuries.” Id. (quoting Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673, 97 S.Ct. 2054, 2058, 52 L.Ed.2d 665 (1977)). Finally, the Court indicated that this type of claim, “if generally permitted, would involve the judiciary in sensitive military affairs at the" }, { "docid": "21580185", "title": "", "text": "in his blood. Kendrick further avers that this failure to monitor the level of Dilantin led to a dangerous state of toxicity, resulting in permanent brain damage. According to Kendrick, the alleged acts of medical malpractice occurred between August 1, 1985, when he contends symptoms of toxicity were first noticed, and November 1985, when he discontinued taking Dilantin. During this time he was on TDRL status. The government contends that the alleged unmonitored overdose of Dilantin and resultant toxicity began with medical treatment provided while Kendrick was on active duty, and the same course of treatment continued while he was in a TDRL status, and it therefore arises out of activity incident to service. II. The government’s motion to dismiss this action pursuant to Rule 12(b)(1) or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure was based on the ground that plaintiff’s claim is barred by the Feres doctrine. Feres and its progeny hold that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146, 71 S.Ct. at 159. Since its inception, the Feres doctrine has been broadly and persuasively applied by federal courts and has now stood for nearly four decades without either legislative or significant judicial alteration. Indeed, the Supreme Court has consistently reaffirmed the Feres doctrine. See, e.g., United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). It is well established that receipt of medical care in military facilities by members of the military on active duty is “activity incident to service” and thus a lawsuit against the United States arising from medical treatment of a service member on active duty is" }, { "docid": "9458013", "title": "", "text": "noted, Congress was cognizant of potential military claims when drafting the FTCA and, had it chosen to do so, could have explicitly excluded them. See Feres, 340 U.S. at 138-39, 71 S.Ct. 153 (noting that all but two of the eighteen drafts of the FTCA considered by Congress barred suits by members of the military); 28 U.S.C. § 2671 (specifically including “members of the military or naval forces of the United States” “acting in the line of duty” in its enumeration of individuals and acts for which the United States may be liable). Likewise, as Congress enacted the FTCA, its decision to bar suits by military members arising in combat during times of war easily passes equal protection scrutiny. Because service men and women are not a “suspect class,” and their access to federal court under the FTCA is not a “fundamental right,” see Miller v. United States, 73 F.3d 878, 881 (9th Cir.1995), Congress’ classification needed merely to be rationally related to a legitimate government interest. See Vacco v. Quill, 521 U.S. 793, 799-801, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). This standard “does not allow us to substitute our personal notions of good public policy for those of Congress.” Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). It is not for “the judiciary [to] sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). See also United States v. Johnson, 481 U.S. 681, 702, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) (arguing that the only possible justification for the chaos created by the Feres doctrine would be if it reflected a decision grounded in the democratic process). When considering the Feres doctrine, however, we are not dealing with a legislative action, but rather with a judicial rewriting of an unambiguous and constitutional statute. Even to the courts that have considered it, the Feres decision stands" } ]

[ { "docid": "23472785", "title": "", "text": "would amount to a complete deterrent to the members of CORE to demonstrate peacefully against the segregation policies of the City of McComb. CORE and other organizations, organized for the purpose of peacefully demonstrating and speaking against unconstitutional state and local laws enforcing segregation, would then find themselves virtually inarticulate. 318 F.2d at 102 (emphasis added). In a vigorous dissent Judge Gewin questioned the grant of first amendment protection to a corporate defendant where pleadings were not filed on behalf of its individual members. It is thus clear that the requisite for representational standing in this circuit is not necessarily an explicit statement of representation but a close nexus between the organization and its members, see NAACP v. Alabama, 357 U.S. at 458-59, 78 S.Ct. at 1169-70, and an allegation of injury to its members as a result of the action. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Such an analysis finds support in Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974), where the Supreme Court held that a union has standing under 42 U.S.C. § 1983 to assert violations of the First Amendment guarantees of freedom of speech and association. In a footnote the Court stated: In this case the union has standing as a named plaintiff to raise any of the claims that a member of the union would have standing to raise. Unions may sue under 42 U.S.C. § 1983 as persons deprived of their rights secured by the Constitution and laws, American Fed. of State, Co., & Mun. Emp. v. Woodward, 406 F.2d 137 (CA8), and it has been implicitly recognized that protected First Amendment rights flow to unions as well as to their members and organizers. Carpenters Union v. Ritter’s Cafe, 315 U.S. 722 [62 S.Ct. 807, 86 L.Ed. 1143]; cf. NAACP v. Button, 371 U.S. 415, 428 [83 S.Ct. 328, 335, 9 L.Ed.2d 405]. If, as alleged by the union in its complaint, its members were subject to unlawful arrests and intimidation for engaging in union organizational activity protected by the First Amendment," } ]

[ { "docid": "84206", "title": "", "text": "other injuries in fact sustained by Wal-Mart, as we discussed above. Nor does the relief requested depend upon proofs particular to individual members. Unlike a suit for money damages, which would require examination of each member’s unique injury, this action seeks a declaratory judgment and injunctive relief, the type of relief for which associational standing was originally recognized. See Warth, 422 U.S. at 515, 95 S.Ct. 2197. Finally, the Secretary argues that associational standing is not appropriate because various RILA members supposedly have conflicting interests. See Md. Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1252-53 (4th Cir.1991). In Maryland Highivays Contractors, an association of contractors challenged a Mary land program that preferred businesses owned primarily by minorities in awarding state procurement contracts. Id. at 1248. We explained that associational standing was not appropriate “when conflicts of interest among members of the association require that the members must join the suit individually in order to protect their own interests.” Id. at 1252. That ease, however, is readily distinguishable from this one. While RILA members do compete in the marketplace, they uniformly endorsed the present litigation. RILA’s board includes representatives from numerous competitors of Wal-Mart, including Best Buy Company, IKEA, and Target Corporation, and the board voted unanimously to prosecute this action. Unlike Maryland Highways Contractors, id. (noting that no minority-owned businesses were represented on the association’s board and that the board did not inform its membership of the suit), this ease presents no hint that RILA’s board authorized this suit without the knowledge or support of any RILA member or faction. At bottom, the prudential considerations of the Hunt test for associational standing do not counsel against permitting RILA to bring this suit, and we reject the Secretary’s challenge on that ground. B For reasons similar to those advanced to challenge RILA’s standing, the Secretary contends that RILA’s claims are not ripe for review. He argues that because Wal-Mart is not certain to suffer injury under the Fair Share Act, RILA’s action is not ripe. See Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n," }, { "docid": "20612385", "title": "", "text": "these plaintiffs’ past arrests. See Appellee (Vance) Br. 44-47. Thus, Copeland and Perez are not similarly situated to the plaintiff in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, because (1) they affirmatively wish to engage in the very conduct that resulted in defendants charging them with violations of § 265.01(1); and (2) the record indicates that, upon becoming aware of any such conduct by plaintiffs, defendants would again charge them with violations of law. Because these circumstances demonstrate a credible threat of prosecution, neither Copeland nor Perez is required to pursue arguably illegal activity or to expose himself to criminal liability before bringing suit to challenge the constitutionality of the law threatened to be enforced. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. at 129, 127 S.Ct. 764; Steffel v. Thompson, 415 U.S. at 480, 94 S.Ct. 1209 (Rehnquist, J., concurring). To the extent the district court concluded that these plaintiffs failed to satisfy the injury-in-fact element of standing, we vacate its judg- ment in favor of defendants and remand for further proceedings. 4. Knife Rights and Knife Rights Foundation Fail To Demonstrate Standing We reach a different conclusion as to the standing of organizational plaintiffs Knife Rights and Knife Rights Foundation. Insofar as these plaintiffs sued on behalf of their members, “[i]t is the law of this Circuit that an organization does not have standing to assert the rights of its members in a case brought under 42 U.S.C. § 1983.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir.2011) (collecting cases). Plaintiffs argue that Nnebe and the precedent on which it relies conflict with Warth v. Seldin, 422 U.S. at 511, 95 S.Ct. 2197. But as Nnebe observed, this court has reaffirmed its rule as to organizational plaintiffs’ representative standing even after Warth v. Seldin; thus, individual panels are bound “by the implicit determination of prior panels that the rule survives Warth ‘until such time as [our prior decisions] are overruled either by an en banc panel of our Court or by the Supreme Court.’ ” Nnebe v. Daus, 644 F.3d at 156" }, { "docid": "5258169", "title": "", "text": "236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, contrary to long standing practice, see P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 182 (2d ed. 1973), the Supreme Court held that members of a school board had, by virtue of a similar oath, standing to challenge a state statute they believed violative of the federal constitution. A few years later, in City of New York v. Richardson, 2 Cir. 1973, 473 F.2d 923, cert. denied, 412 U.S. 950, 93 S.Ct. 3012, 37 L.Ed.2d 1002, and Aguayo v. Richardson, 2 Cir. 1973, 473 F.2d 1090, cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101, the Second Circuit broadly asserted that under the authority of Allen “plaintiffs who sued in their official capacities may assert constitutional claims against the state.” City of New York, 473 F.2d at 933. Accord, Aguayo, 473 F.2d at 1100. With due respect, we believe that our colleagues on the Second Circuit have stated the rule derived from Allen too widely, especially in light of the Supreme Court’s more recent pronouncements on the subject of standing. See, e. g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 1977, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Simon v. Eastern Kentucky Welfare Rights Organization, 1976, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450; Warth v. Seldin, supra. Two more recent opinions, from two different three-judge courts, while no more binding on us, persuasively express the meaning of the Allen footnote. In Athanson v. Grasso, D.Conn.1976, 411 F.Supp. 1153, the three-judge court was required to analyze carefully the interpretation placed upon Allen in City of New York and Aguayo because, as a district court within the Second Circuit, it was bound to follow the law of the circuit. Id. at 1157. The court examined the Supreme Court’s opinion closely, and found that the Allen plaintiffs were in danger of expulsion from office at the hands of the defendant if they did not obey the statute. In Athanson the plaintiffs were in no danger of expulsion" }, { "docid": "15608814", "title": "", "text": "alleged injury is to retailers rather than to wholesalers, the injury does not give the MWMBI standing. See, e.g., Warth, 422 U.S. at 499, 95 S.Ct. 2197 (stating that a party \"generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties”); Moose Lodge No. 197 v. Irvis, 407 U.S. 163, 166, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972)(similar). . Although the MWMBI also briefly mentions that the elimination of the Price Posting Laws has already caused the wholesalers economic loss, it fails to support its allegation with particulars describing any current injury — e.g., market destabilization, decreased profits, or external pressures to engage in price discrimination. We therefore disregard this allegation as conclusory, see AVX, 962 F.2d at 115, and confine our focus to whether the MWMBI members face an imminent future injury. . The MWMBI is in an unusual stance in this case because the injury alleged to some of its members (the law-abiding wholesalers) may be the direct result of illegal activity by other members. Some circuits have determined that if there are conflicts of interest among an association's members, the association will fail either the germaneness-to-the-organization prong or the individual-participation prong of the associational standing lest. See, e.g., Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 864-65 (7th Cir.1996) (under germaneness-to-the-or-ganization prong); Maryland Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251-53 (4th Cir.1991) (under individual-participation prong). Other circuits, however, permit standing even if there are such conflicts. See, e.g., Associated Gen. Contractors of Cal. v. Coalition for Economic Equity, 950 F.2d 1401, 1408-09 (9th Cir.1991). We need not decide whether conflicts of interest among the MWMBI members defeat associational standing because we conclude Lhat no MWMBI member has suffered an injuiy-in-facl. For present purposes, it is sufficient merely to note that, in all material respects, MWMBI-mem-ber wholesalers engaging in illegal price discrimination would be third parties with respect to the wholesalers that are putatively injured. . While predicting the behavior of third parties is always dubious, it is" }, { "docid": "23492914", "title": "", "text": "that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts. There can be no doubt that appellants thus have a “personal stake in the outcome” of this litigation. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Id. The quoted footnote comprised the extent of the Court’s discussion of the standing issue. Were Allen the last word from the Supreme Court on standing, we could simply adopt the rationale of the quoted footnote and determine that the councilmembers in the case before us have standing on the basis that they believe that enforcing the CTRPA’s ordinances would violate their oaths of office. Indeed, this is the approach taken by several of our sister circuits. See Regents of the Univ. of Minn. v. NCAA, 560 F.2d 352, 363-64 (8th Cir.), cert. dismissed, 434 U.S. 978, 98 S.Ct. 600, 54 L.Ed.2d 472 (1977); Aguayo v. Richardson, supra, 473 F.2d at 1100; City of New York v. Richardson, supra, 473 F.2d at 933. Contra, Finch v. Mississippi State Medical Ass’n, 585 F.2d 765, 773-75 (5th Cir. 1978); Athanson v. Grasso, 411 F.Supp. 1153, 1156-61 (D.Conn. 1976) (three-judge court). See also Akron Bd. of Educ. v. State Bd. of Educ., supra, 490 F.2d at 1289-91 (granting a school board standing to challenge state districting and transfer policies which increased segregation within school board’s district on any of three theories: (1) jus tertii representation of parents and students; (2) the board’s interest in preventing loss of territory and tax dollars; (3) the board members’ desires not to violate their oaths of office and to avoid exposure to civil liability.). But Allen was followed by Schlesinger, Richardson, Warth, and other cases which significantly tightened standing requirements. See, e. g., O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Neither the Second nor the Sixth Circuit has had the opportunity to reconsider the impact of Allen since Schlesinger and Richardson. The sum" }, { "docid": "16849638", "title": "", "text": "interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). Plaintiffs’ opposition indicates that the Association has met the first two prongs of this test. However, the Court is convinced, based on the pleadings, that the relief requested requires the participation of each individual member of the Association. Plaintiffs have only provided a list of fifty-three individuals who are currently represented by the self-help group, formed in response to the actions of the Defendants. While the complaint explains that some of these individuals were also school directors like Hatfield, neither the complaint nor the opposition indicates what specific injuries these individuals have allegedly suffered as result of political discrimination by the Department and its officials. Accordingly, the Court is particularly reluctant to assume that the monetary damages requested are common to all members or that any award should be shared by all in equal degree. Indeed, as the Seventh Circuit has noted, “[w]e are not aware of any cases allowing an association to proceed on behalf of their members when claims for monetary as opposed to prospective, relief are involved.” Sanner v. Board of Trade of Chicago, 62 F.3d 918, 922-923 (7th Cir.1995); see also United Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Insurance Corp. of America, 919 F.2d 1398, 1400 (9th Cir.1990) (“no federal court has allowed an association standing to seek monetary relief on behalf of its members”). Moreover, given the often fact-intensive and idiosyncratic nature of discrimination claims, some courts have greatly “restricted organizational standing under § 1983 by interpreting the rights it secures to be personal to those purportedly injured.” League of Women Voters v. Nassau Cty. Bd. of Supervisors, 737 F.2d 155, 160 (2d Cir.1984). See also Warth v. Seldin 495 F.2d 1187, 1194 (2d Cir.1974) (“It is highly doubtful that an organization has standing to represent its members in most cases under" }, { "docid": "20612386", "title": "", "text": "for further proceedings. 4. Knife Rights and Knife Rights Foundation Fail To Demonstrate Standing We reach a different conclusion as to the standing of organizational plaintiffs Knife Rights and Knife Rights Foundation. Insofar as these plaintiffs sued on behalf of their members, “[i]t is the law of this Circuit that an organization does not have standing to assert the rights of its members in a case brought under 42 U.S.C. § 1983.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir.2011) (collecting cases). Plaintiffs argue that Nnebe and the precedent on which it relies conflict with Warth v. Seldin, 422 U.S. at 511, 95 S.Ct. 2197. But as Nnebe observed, this court has reaffirmed its rule as to organizational plaintiffs’ representative standing even after Warth v. Seldin; thus, individual panels are bound “by the implicit determination of prior panels that the rule survives Warth ‘until such time as [our prior decisions] are overruled either by an en banc panel of our Court or by the Supreme Court.’ ” Nnebe v. Daus, 644 F.3d at 156 n. 5 (alteration in original) (quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.2004)). Insofar as the organizational plaintiffs sue on their own behalf, they must independently satisfy the requirements of Article III standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (holding that organization’s standing to sue on its own behalf requires same inquiry as in case of individual: “Has the plaintiff alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction?” (internal quotation marks omitted)); accord Nnebe v. Daus, 644 F.3d at 156. Knife Rights and Knife Rights Foundation attempt to carry this burden by citing the expenses they incurred in opposing defendants’ application of § 265.01(1). Even assuming that such expenditures “perceptibly impaired” these organizations’ activities, they at best demonstrate past injury. Havens Realty Corp. v. Coleman, 455 U.S. at 378-79, 102 S.Ct. 1114 (concluding that nonprofit organization established standing in its own right to pursue Fair Housing Act challenge to apartment" }, { "docid": "9640915", "title": "", "text": "Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Maryland Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1250 (4th Cir.1991). Thus, if these plaintiffs are “voluntary membership” organizations and their members have suffered injury that is causally related to the defendant’s challenged conduct, plaintiffs’ standing to bring this action as the representatives of their constituents is clear. In Warth v. Seldin, the Court stated the principle as follows: Even in the absence of injury to itself, an association may have standing solely as the representative of its members.... The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. So long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction. 422 U.S. at 511, 95 S.Ct. 2197 (citation omitted). An association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the law suit. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Maryland Highways Contractors Ass’n. v. Maryland, 933 F.2d 1246, 1250 (4th Cir.1991). C.' During and subsequent to the trial the plaintiffs presented as evidence supporting their standing to pursue this action the following: (1) The Amended Bylaws of Friends of the Earth; (2) The Constitution and Bylaws of Citizens Local Environmental Action Network; and (3) The testimony of several witnesses, including FOE’s Secretary and three purported members who testified concerning their alleged injuries. The impact of that evidence on this case will now be considered. (1)" }, { "docid": "15426151", "title": "", "text": "associational standing inappropriate. Retired Chicago Police Association v. City of Chicago, 76 F.3d 856, 864 (7th Cir.1996). The Seventh Circuit has identified two types of conflict serious enough to be considered “profound”: (1) Where an association “seeks standing to directly sue some of its members,” id; and (2) where “the association’s suit, if successful, would cause a direct detriment to the interests of some of its members and the litigation was not properly authorized.” Id. The City argues that this case presents a “direct detriment” conflict of interest. Because some of the members of the Builders Association are minority or women contractors, and because others may have economic or ideological interests in maintaining the M/WBE program, this litigation could cause a direct detriment to some Association members. The City is undoubtedly correct in this assertion. As the Builders Association admits, at least some of its members are MBEs or WBEs, who receive a direct financial benefit from the M/WBE program, and would incur economic harm should it be invalidated. See Maryland Highways Contractors Association, Inc. v. State of Maryland 933 F.2d 1246, 1253 (4th Cir.1991) (finding conflict within contractors association where some members were minority contractors who benefitted from set-aside program); Retired Chicago Police Association v. City of Chicago, 7 F.3d 584, 605-606 (7th Cir.1993) (discussing Maryland Highways ). But such a conflict will not preclude associational standing when the organization has properly authorized the litigation in accordance with its own internal procedures. Id. at 865. When the litigation has been properly authorized, there is less concern that the rights of dissenting members will be compromised or that the association will not provide the “zealous advocacy necessary to be an adequate representative.” Id At this point the Builders Association appears to have made a good prima facie case that it followed appropriate procedures in authorizing this action. According to the first amended complaint, a quorum of the Association’s board of directors met on January 25,1996, to vote on the litigation, and a majority of those present voted in favor of it. Moreover, the decision to bring this action appears to" }, { "docid": "2038779", "title": "", "text": "824 F.2d 1228, 1231-34 (D.C.Cir.1987) (conflicting interests among members will not defeat union’s standing to urge the interests of some members in litigation); Contractors Ass’n of Eastern Pennsylvania, Inc. v. Philadelphia, 945 F.2d 1260, 1264-66 (3rd Cir.1991); and Gillis v. U.S. Dept of Health and Human Services, 759 F.2d 565, 572-73 (6th Cir.1985). But see Associated General Contractors v. Otter Tail Power Co., 611 F.2d 684, 691 (8th Cir.1979). Indeed, in National Maritime Union, the Circuit Court for the District of Columbia went so far as to assert that the Supreme Court itself, in UAW v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), determined that conflicting member interests will not preclude associational standing. 824 F.2d at 1232-33. The majority’s second reason for finding that participation of the individual members of the Society is necessary appears to be that a free exercise claim, by its very nature, requires particularized information from all members. For this proposition the majority cites Harris v. McRae, 448 U.S. 297, 320-21, 100 S.Ct. 2671, 2689-90, 65 L.Ed.2d 784 (1980), in which Justice Stewart, writing for the Court, determined that the Women’s Division of the Board of Global Ministries of the United Methodist Church had no standing under the third Hunt prong to challenge the Hyde Amendment on behalf of its members because a free exercise claim “ordinarily requires individual participation.” But this court has never interpreted McRae as precluding all free exercise claims brought by associations on behalf of their members. See, e.g., Church of Scientology v. Cazares, 638 F.2d 1272, 1276-80 (5th Cir.1981) (distinguishing McRae and finding church to have standing under the third Hunt prong to bring a free exercise claim on behalf of its members). The critical aspect of McRae, moreover, was that the Women’s Division conceded a diversity of views within its membership as to the permissibility, necessity, and advisability of abortion. In this case, by contrast, the majority pre sumes a diversity of views, stating that nothing in the record supports the notion that Society members share O’Hair's views regarding the religious nature of an affirmance. Does" }, { "docid": "4088303", "title": "", "text": "654, 656-57, No. 14-3857, 2016 WL 374422, at *2 (8th Cir. Feb. 1, 2016), wé need not analyze standing under Missouri law because appellants invoke federal jurisdiction based on the existence of a federal question, see 28 U.S.C. § 1331, not the diversity of the parties, see 28 U.S.C. § 1332(a)(1). Dismissal of appellants’ claims for lack of standing is subject to de novo review. See Nat’l Fed’n of the Blind of Mo. v. Cross, 184 F.3d 973, 979 (8th Cir.1999). “Article III standing must be decided first by the court and presents a question of justiciability; if it is lacking, a federal court has no subject-matter jurisdiction over the claim.” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 934 (8th Cir.2012). “[T]he irreducible constitutional minimum” of Article III standing requires, first, “an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) ‘actual or imminent.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted). “Second, there must be a causal connection between the injury and the conduct complained of’ so that the injury is “ ‘fairly ... trace[able] to the challenged action of the defendant.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Id. at 560-61, 112 S.Ct. 2130 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 41-42, 43, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Reviewing these requirements, we conclude Higgins has standing. Cf. Metro. Express Servs., Inc. v. City of Kansas City, 23 F.3d 1367, 1370 (8th Cir.1994). As to the union, “[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members.” Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To obtain standing “on behalf of its members,” the union must demonstrate “(a) its members would otherwise have standing to sue in their own right; (b) the interests [the union] seeks to" }, { "docid": "6325205", "title": "", "text": "Mem. at 18-19.) This argument is unavailing. As an initial matter, ERC seeks declaratory and injunctive relief under the ADA, which is precisely “the type of relief for which associational standing was originally recognized.” Retail Indus. Leaders Ass’n v. Fielder, 475 F.3d 180, 187 (4th Cir.2007); see also Hosp. Council of W. Pa. v. Pittsburgh, 949 F.2d 83, 89 (3d Cir.1991) (“The Supreme Court has repeatedly held that requests by an association for declaratory and injunctive relief do not require participation by individual association members.”). Moreover, although certain individual members—Ciotti and Stanton, for instance—may need to provide testimony and other evidence to establish the existence of access barriers in this case, the Supreme Court has made clear that Hunt’s third prong is satisfied “so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensible to proper resolution of the cause.” Warth, 422 U.S. at 511, 95 S.Ct. 2197 (emphasis added); see also Int’l Woodworkers of Am. v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1267 (4th Cir.1981) (“The relevant inquiry ... is whether the claims asserted or the relief requested requires each member to participate individually in the lawsuit.”). Thus, “an association may assert a claim that requires participation by some members,” Hosp. Council of W. Pa. v. Pittsburgh, 949 F.2d 83, 89 (3d Cir.1991), and Hunt’s third prong may be satisfied even when the “litigation would likely require that [individual members] provide discovery and trial testimony.” Retired Chi. Police Ass’n v. City of Chi, 7 F.3d 584, 601-02 (7th Cir.1993). Because only some members of ERC would be required to participate in this suit, the type of claim asserted here does not run afoul of the Hunt test. Accordingly, ERC has associational standing to pursue declaratory and injunctive relief under the ADA on behalf of both Ciotti and Stanton. 4. Scope of Relief Defendants argue that even if ERC has associational standing, this standing is based only on the allegations of Ciotti and Stanton and is therefore limited to the four stores at which they encountered" }, { "docid": "15426152", "title": "", "text": "v. State of Maryland 933 F.2d 1246, 1253 (4th Cir.1991) (finding conflict within contractors association where some members were minority contractors who benefitted from set-aside program); Retired Chicago Police Association v. City of Chicago, 7 F.3d 584, 605-606 (7th Cir.1993) (discussing Maryland Highways ). But such a conflict will not preclude associational standing when the organization has properly authorized the litigation in accordance with its own internal procedures. Id. at 865. When the litigation has been properly authorized, there is less concern that the rights of dissenting members will be compromised or that the association will not provide the “zealous advocacy necessary to be an adequate representative.” Id At this point the Builders Association appears to have made a good prima facie case that it followed appropriate procedures in authorizing this action. According to the first amended complaint, a quorum of the Association’s board of directors met on January 25,1996, to vote on the litigation, and a majority of those present voted in favor of it. Moreover, the decision to bring this action appears to have been ratified by the Association’s members at a special meeting called in accordance with Article XI of the Builders Association bylaws. Given this preliminary showing, the Association appears likely to succeed in establishing standing to proceed with this action. Finally, we note that there are “less drastic” ways to protect the rights of dissenting members of an association than denying associational standing. Automobile Workers v. Brock, 477 U.S. at 290, 106 S.Ct. at 2533. Dissenters’ interests may be taken into account “through liberal approval of their intervention in the lawsuit or ... through refusal to preclude subsequent claims by dissenting members.” Associated General Contractors of California v. Coalition for Economic Equity, 950 F.2d 1401 (9th Cir.1991), cert. denied 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992). Should the City of Chicago’s motion to dismiss ultimately be denied, we will consider alternative means of protecting any dissenters’ interests as they are presented to us. Although we deny the City’s motion for a scheduling order, the parties should proceed with discovery related to the" }, { "docid": "16754068", "title": "", "text": "then dismissed the amended complaint on the same ground. That dismissal was with prejudice. These appeals followed. STANDARDS OF REVIEW We review the district court’s determination that AGC has standing de novo. See Inland Empire Chapter of Associated Gen. Contractors v. Dear, 77 F.3d 296, 299 (9th Cir.1996). We also review its determination regarding ERISA preemption de novo. See Aloha Airlines, Inc. v. Ahue, 12 F.3d 1498, 1500 (9th Cir.1993). Moreover, we review its determination that the preliminary injunction should be denied because AGC had no likelihood of success on the merits de novo. See Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 980 (9th Cir.1993). At the same time, our review of denials of injunctive relief is limited, and we will reverse only if the district court “abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Herrington v. County of Sonoma, 12 F.3d 901, 907-08 (9th Cir.1993). In addition, We review a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo. We limit our review to the allegations of material facts set forth in the complaint, which we read in the light most favorable to the non-moving party and which, together with all reasonable inferences therefrom, we take to be true. However, eonclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.1998) (citations omitted). JURISDICTION MWD first argues that there is no jurisdiction to proceed because AGC does not have standing to bring this action. We disagree. The test for representational standing, which is what AGC seeks, is: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Associated Gen. Contractors v. Coalition for Econ. Equity, 950 F.2d 1401, 1406 (9th Cir.1991) (citation and internal quotations omitted). There can be no doubt that AGC meets" }, { "docid": "15608815", "title": "", "text": "result of illegal activity by other members. Some circuits have determined that if there are conflicts of interest among an association's members, the association will fail either the germaneness-to-the-organization prong or the individual-participation prong of the associational standing lest. See, e.g., Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 864-65 (7th Cir.1996) (under germaneness-to-the-or-ganization prong); Maryland Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251-53 (4th Cir.1991) (under individual-participation prong). Other circuits, however, permit standing even if there are such conflicts. See, e.g., Associated Gen. Contractors of Cal. v. Coalition for Economic Equity, 950 F.2d 1401, 1408-09 (9th Cir.1991). We need not decide whether conflicts of interest among the MWMBI members defeat associational standing because we conclude Lhat no MWMBI member has suffered an injuiy-in-facl. For present purposes, it is sufficient merely to note that, in all material respects, MWMBI-mem-ber wholesalers engaging in illegal price discrimination would be third parties with respect to the wholesalers that are putatively injured. . While predicting the behavior of third parties is always dubious, it is particularly troubling to postulate that a third party will violate a valid law that is not being challenged. Cf. O'Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (evincing an unwillingness to predict that plaintiffs will \"violate an unchallenged law,” be charged, and be tried in proceedings before defendants); Nelsen v. King County, 895 F.2d 1248, 1252 (9th Cir.1990); Joseph v. United States Civil Serv. Comm'n, 554 F.2d 1140, 1148 (D.C.Cir.1977). There is, however, evidence in the record of previous violations of the Price Posting Laws and the Price Discrimination Law. See O’Shea, 414 U.S. at 496, 94 S.Ct. 669 (\"[Pjast wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury.”). Therefore, despite our concerns about assuming that third parties will violate valid law in the future, we will assume that the threat of future violations is not too remote to constitute injuiy-in-fact. . Although the district court determined that the provision requiring the filing of prices would not violate the Sherman Act by" }, { "docid": "9640914", "title": "", "text": "adequately by the evidence adduced at trial .... ’ 504 U.S. at 561, 112 S.Ct. 2130 (citations omitted). An inquiry into standing invokes prudential considerations which “add to the constitutional minima a healthy concern that if the claim is brought by someone other than one at whom the statutory protection is aimed, the claim not be an abstract generalized grievance that the courts are neither well equipped nor well advised to adjudicate.” Secretary of State of Maryland v. Joseph H. Munson, Inc., 467 U.S. 947, 955, n. 5, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Burke v. City of Charleston, 139 F.3d 401 (4th Cir.1998). B. The plaintiffs allege that they have standing to pursue this action both in their own right and on behalf of their “members.” The Supreme Court recognizes that an “association” may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Maryland Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1250 (4th Cir.1991). Thus, if these plaintiffs are “voluntary membership” organizations and their members have suffered injury that is causally related to the defendant’s challenged conduct, plaintiffs’ standing to bring this action as the representatives of their constituents is clear. In Warth v. Seldin, the Court stated the principle as follows: Even in the absence of injury to itself, an association may have standing solely as the representative of its members.... The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. So long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to" }, { "docid": "12222695", "title": "", "text": "(2d ed.1986). However, the 1966 Amendment to Federal Rule of Civil Procedure 24(a) may have changed this rule. Id.; see also Fed. R.Civ.P. 24(a) advisory committee's note. District courts have frequently imposed such conditions, and courts of appeals have sometimes embraced them, Beauregard, Inc. v. Sword Services LLC, 107 F.3d 351, 352-53 (5th Cir.1997); Southern v. Plumb Tools, 696 F.2d 1321, 1322 (11th Cir.1983), but courts of appeals have commonly reserved the issue, leaving the extent to which such conditions may be imposed unclear, e.g., Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 469-70 (4th Cir.1992), cert. denied, 507 U.S. 1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993). See Wright, Miller & Kane, supra, § 1922 (2d ed. 1986 & Supp. 2000). . Interestingly, the test described above originated as a three-part test for the \"standing” of organizations, Hunt v. Washington State Apple Advertising Com’n, 432 U.S. 333, 341-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), but has since been used interchangeably as a test both for organizational standing and for an organization’s right to intervene. E.g., Sierra Club, 82 F.3d at 110; Equal Employment Opportunity Comm’n v. Nevada Resort Ass’n, 792 F.2d 882, 885 (9th Cir.1986). .See Massachusetts Ass’n of Afro-American Police, Inc. v. Boston Police Dep’t, Civ. No. 78-529-McN (D.Mass. Sept. 16, 1980) (consent decree); see also Boston Police Superior Officers Fed’n v. City of Boston, 147 F.3d 13 (1st Cir.1998); Massachusetts Ass’n of Afro-American Police, Inc. v. Boston Police Dep’t, 973 F.2d 18 (1st Cir.1992); Stuart v. Roache, 951 F.2d 446 (1st Cir.1991), cert. denied, 504 U.S. 913, 112 S.Ct. 1948, 118 L.Ed.2d 553 (1992); Massachusetts Ass’n of Afro-American Police, Inc. v. Boston Police Dep’t, 780 F.2d 5 (1st Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3334, 92 L.Ed.2d 740 (1986); Massachusetts Ass’n of Afro-American Police, Inc. v. Boston Police Dep’t, 106 F.R.D. 80 (D.Mass.1985). . This does not mean that any other MAM-LEO member is entitled to intervene as of right. If MAMLEO intervenes, it is hard to see how such an officer, whose own promotion is not immediately at stake, could" }, { "docid": "547885", "title": "", "text": "on voters.” Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 1568, 75 L.Ed.2d 547 (1983), quoting Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). In Anderson and Bullock, the Court allowed suits by voter plaintiffs or intervenors challenging state ballot access requirements. The Ninth Circuit, interpreting Anderson, has upheld voter standing to challenge a candidate eligibility requirement since “basic constitutional rights of voters as well as those of candidates” are implicated. Erum v. Cayetano, 881 F.2d 689, 691 (9th Cir.1989), citing Baker v. Carr, 369 U.S. 186, 206, 82 S.Ct. 691, 704, 7 L.Ed.2d 663 (1962). The Circuit has also upheld a voter’s standing to challenge a state election law write-in provision. Burdick, 927 F.2d at 472. Initiative 573 would prevent the plaintiffs from casting their votes for any candidate barred from the ballot under its provisions except through a burdensome write-in procedure. The Supreme Court has held that a write-in opportunity “is not an adequate substitute for having the candidate’s name appear on the printed ballot.” Anderson, 460 U.S. at 799 n. 26, 103 S.Ct. at 1575 n. 26, citing Lubin v. Panish, 415 U.S. 709, 719 n. 5, 94 S.Ct. 1315, 1321 n. 5, 39 L.Ed.2d 702 (1974). This threatened injury is enough to confer standing; the plaintiffs are not required to wait until the injury has actually occurred. Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09; Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515 (9th Cir.1992). The League of Women Voters of Washington has representational standing to sue for its voter-members. Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975); Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 2441-42, 53 L.Ed.2d 383 (1977). B. Ripeness Under the doctrine of ripeness, federal courts refrain from deciding “abstract disagreements” that might never become real disputes. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 3332-33, 87 L.Ed.2d 409 (1985). Ripeness is largely a question of timing, id., 473 U.S. at" }, { "docid": "20612400", "title": "", "text": "of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse.” Id. at 108, 103 S.Ct. 1660. By contrast, the crux of plaintiffs’ claim here is that defendants generally \"apply the State laws prohibiting ... gravity knives to include Common Folding Knives that — in their view— can be 'readily' opened with a ‘wrist-flicking’ motion,” with the result that \"NYPD officers arrest and charge individuals found carrying such Common Folding Knives with Criminal Possession of a Weapon in the Fourth Degree, and [Vance] prosecutes the alleged offenses.” Am. Compl. ¶ 3; see id. ¶¶ 15-16 (alleging that defendants \"continue to enforce” and \"threaten to enforce” gravity knife prohibition). . Our precedent appears to have framed \"standing” in the context of organizational claims under § 1983 more as a statutory than as a constitutional question. See League of Women Voters v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 160 (2d Cir.1984) (“This Circuit has restricted organizational standing under § 1983 by interpreting the rights it secures to be personal to those purportedly injured.”); Aguayo v. Richardson, 473 F.2d 1090, 1099 (2d Cir.1973) (Friendly, C.J.) (framing question as \"whether the welfare organizations have standing under the civil rights statute, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3),” and concluding that neither language of statute nor its history \"suggests that an organization may sue under the Civil Rights Act for the violation of rights of members”). As such, our adherence to this precedent in concluding that Knife Rights and Knife Rights Foundation lack \"standing” might be understood to speak to the plausibility of their representational claim under § 1983, rather than to our own power under Article III. See generally Lexmark Int’l, Inc. v. Static Control Components, Inc., - U.S. -, 134 S.Ct. 1377, 1387 & n. 4, 188 L.Ed.2d 392 (2014) (observing that whether plaintiff comes within the \"zone of interests” protected by statute \"requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action" }, { "docid": "16849639", "title": "", "text": "award should be shared by all in equal degree. Indeed, as the Seventh Circuit has noted, “[w]e are not aware of any cases allowing an association to proceed on behalf of their members when claims for monetary as opposed to prospective, relief are involved.” Sanner v. Board of Trade of Chicago, 62 F.3d 918, 922-923 (7th Cir.1995); see also United Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Insurance Corp. of America, 919 F.2d 1398, 1400 (9th Cir.1990) (“no federal court has allowed an association standing to seek monetary relief on behalf of its members”). Moreover, given the often fact-intensive and idiosyncratic nature of discrimination claims, some courts have greatly “restricted organizational standing under § 1983 by interpreting the rights it secures to be personal to those purportedly injured.” League of Women Voters v. Nassau Cty. Bd. of Supervisors, 737 F.2d 155, 160 (2d Cir.1984). See also Warth v. Seldin 495 F.2d 1187, 1194 (2d Cir.1974) (“It is highly doubtful that an organization has standing to represent its members in most cases under the Civil Rights Act.”). Hence, the Court has no choice but to dismiss the claims brought by the Association. However, this does not preclude the fifty-three members of the Association to individually file suit against the Defendants. Section 1983 Claim Defendants next argue that Plaintiff Hatfield has failed to plead a prima facie case of political discrimination. In particular, Defendants assert that Plaintiff has failed to show that her political affiliation was the motivation for Defendants’ actions. Since the Court is obliged to assume that all facts alleged by the Plaintiff are true, the Court believes that Hatfield has sufficiently pled a cause of action for political discrimination. Indeed, in her amended complaint, Plaintiff clearly states that the education contract was not awarded to her “because of her administrative identification to the past NPP Administration.” Fourteenth Amendment Due Process Claims Thirdly, Defendants argue that Plaintiffs procedural due process claims must be dismissed because as a contract employee, Plaintiff had no property interest in her employment beyond the fixed term. Defendants are correct in their assertion" } ]

[ { "docid": "22722275", "title": "", "text": "Rojas-Garcia waived his ability to raise these arguments by failing to exhaust his administrative remedies. We start by addressing the INS’s waiver argument. A Before a petitioner can raise an argument on appeal, the petitioner must first raise the issue before the BIA or IJ. INA § 242(d), 8 U.S.C. § 1252(d). See also Liu v. Waters, 55 F.3d 421, 424 (9th Cir.1995). Similarly, the petitioner must exhaust administrative remedies before raising the constitutional claims in a habe-as petition when those claims are reviewable by the BIA on appeal, such as ineffective assistance of counsel claims. Liu 55 F.3d at 425. “The exhaustion requirement avoids premature interference with the agency’s processes and helps to compile a full judicial record.” Id. at 424 (citation and internal quotations omitted). . Here, Rojas-Garcia does not raise any arguments for the first time on appeal. In the “Notice of Appeal” filed with the BIA on May 23, 1996, Rojas-Garcia asserted in part that the IJ erred in admitting hearsay evidence and that INA § 212(a)(2)(C) was unconstitutionally vague. After the BIA dismissed Rojas-Garcia’s appeal, Rojas-Garcia filed a motion for reconsideration on August 16, 1999, arguing that the BIA’s summary dismissal of his appeal was improper and raising the ineffective assistance of counsel claim. Cf. Liu, 55 F.3d at 424 (“A petitioner must make a motion for the BIA to reopen before we will hold that he has exhausted his claims.”); Arreaza-Cruz v. INS, 39 F.3d 909, 912 (9th Cir.1994) (refusing to hear ineffective assistance of counsel claim because petitioner had not filed a motion to reopen). The BIA has been given an opportunity to review and adjudicate all of Rojas-Garcia’s claims through either direct appeal or the motion for reconsideration. We therefore reject the government’s argument that Rojas-Garcia waived his arguments through procedural default. We now turn to Rojas-Garcia’s contentions. B Rojas-Garcia first challenges the BIA’s summary dismissal of his appeal. To avoid summary dismissal of an appeal filed with the BIA, a petitioner must state with sufficient specificity the ground for appeal. See Casas-Chavez v. INS, 300 F.3d 1088, 1089-90 (9th Cir.2002)., See" } ]

[ { "docid": "22584452", "title": "", "text": "24, 2005. The BIA’s order stated, in relevant part: We ... affirm the Immigration Judge’s application of Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986), to the facts of the instant case, and we affirm her conclusion that there was no showing of “egregious circumstances” with respect to [Santiago’s] prior counsel’s concession to the charges of removability or the change of venue. Id. Finally, we affirm the Immigration Judge’s ultimate conclusion that the respondent did not suffer ineffective assistance of counsel. The BIA, however, “declinefd] to address the remainder of the issues raised in [Santiago’] brief,” including that the IJ erred in holding, in the alternative, that Santiago’s testimony established that by “accommodating” Luis’s attempt to enter the country illegally, Santiago was removable as an alien smuggler and ineligible for a waiver of that ground of removability. Santiago timely petitioned for review of the BIA’s order. SCOPE & STANDARD OF REVIEW “Where, as here, the BIA ‘has reviewed the IJ’s decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.’ ” Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir.2008) (quoting Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002)). “In reviewing the decision of the BIA, we .consider only the grounds relied upon by that agency.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). “Questions of law, including claims of due process violations due to ineffective assistance, we review de novo.” Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005); see also Jie Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). Factual findings, including “findings of fact regarding counsel’s performance,” are reviewed for substantial evidence, id., meaning that they “are ‘conclusive unless any reasonable adjudicator would be compelled to conclude the contrary.’ ” Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). DISCUSSION To deport an alien, such as Santiago, who has been lawfully admitted to this country, the Government has the burden of establishing “by clear, unequivocal, and convincing evidence” that he is" }, { "docid": "22763793", "title": "", "text": "v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006) (holding court lacks jurisdiction to review the BIA’s denial of a motion to reopen where the BIA already denied cancellation of removal on direct appeal based on failure to demonstrate exceptional and extremely unusual hardship, and the newly introduced evidence spoke to the same hardship). Accordingly, we lack jurisdiction to review the BIA’s denial of the motion to reconsider because petitioners’ contentions, namely that the agency failed to properly weight their hardship evidence, does not state a colorable due process claim. See Martinez-Rosas, supra, 424 F.3d at 930. Further, we lack jurisdiction to review petitioners’ contention that the agency abused its discretion in denying the motion to reopen to seek prosecutorial discretion based on the recent order of President Obama. See 8 U.S.C. § 1252(g); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001) (holding that section 1252(g) barred review of discretionary, quasi-prosecutorial decisions by asylum officers and INS district directors to adjudicate cases or refer them to immigration judges for hearing). Lastly, to the extent petitioners contend they received ineffective assistance of counsel, we lack jurisdiction to review unexhausted claims that could have been corrected by the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Accordingly, we grant respondent’s motion to dismiss for lack of jurisdiction. All other pending motions are denied as moot. The temporary stay of removal will terminate upon issuance of the mandate. DISMISSED." }, { "docid": "22061856", "title": "", "text": "(3d Cir.2005) (motion to reopen filed during pendency of appeal is properly heard by BIA). We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). See Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005). Because “there is no ‘final order’ until the BIA acts,” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001), we review only the decision of the BIA, “absent special circumstances not present here.” Id. at 545. “[W]e review the [BIA’s] denial of a motion to reopen for abuse of discretion.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). “Under the abuse of discretion standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002) (internal quotation marks omitted). However, we review de novo the Board’s determination of an underlying procedural due process claim. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1362, 164 L.Ed.2d 72 (2006); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002). Since claims of ineffective assistance of counsel in immigration proceedings are grounded in the “Fifth Amendment right to due process,” Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir.2005); see infra Part III.A, we think that such claims should be reviewed de novo. Finally, questions of law, such as whether the BIA applied the correct legal standard in considering the motion to re open and the underlying claim of denial of due process, are also reviewed de novo. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). III. DISCUSSION On this petition for review, Fadiga contends that the BIA “erroneously concluded that the Petitioner’s applications had not been prejudiced by the ineffective assistance of his counsel.” Petr.’s Br. 7. Fadiga argues that the alleged errors of counsel in failing to prepare him for the hearing or to inform him of the types of evidence that might be helpful to his application were “fundamental” and “deprived [him] of any real opportunity to produce evidence to substantiate and corroborate his claims.” Petr.’s" }, { "docid": "22197100", "title": "", "text": "Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Questions of law, as well as claims of due process violations, are reviewed de novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). III. ANALYSIS Petitioners claim their deportation proceedings warrant reopening because their due process rights were violated by the deficient assistance of an immigration consultant. They assert an ineffective assistance of counsel claim even though they concede they did not retain counsel. The BIA found that petitioners could not base such a claim on the deficient advice of a non-attorney, relying on our decision in Singh-Bhathal v. INS 170 F.3d 943 (9th Cir.1999). In Singh-Bhathal, we held that reliance on the mistaken advice of a non-attorney immigration consultant was insufficient to demonstrate the “exceptional circumstances” necessary for reopening an in absentia deportation order. Id. at 946-47. “Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985). Federal law guarantees an individual the opportunity to obtain counsel of his own choice in “any removal proceedings before an immigration judge.” 8 U.S.C. § 1362. We have found that this statutory right stems from the Fifth Amendment’s guarantee of due process in deportation proceedings. See Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir.2006). Thus, if an individual chooses to retain counsel, his or her due process right “includes a right to competent representation. ” Id. (italics in original). If counsel’s assistance is deficient, and prejudice can be shown, we have recognized an ineffective assistance of counsel claim in removal proceedings. See, e.g., id. at 590; Castillo-Perez, 212 F.3d at 526. Ineffective assistance of counsel claims arise directly out of the duties and expectations created by an attorney’s unique role in the legal system. The Supreme Court has recognized that, pursuant to the Sixth Amendment, a criminal defendant has a right to an attorney to ensure that he or she receives a fair trial. See Strickland v." }, { "docid": "22696616", "title": "", "text": "of removal” may be transferred to this Court. As Singh stated in his motion to reopen, the basis of his motion was the ineffective assistance of counsel that occurred during the administrative proceedings. It is thus clear that Singh’s motion to reopen is a challenge to the final order of removal. Accordingly, Singh’s habeas petition falls within the scope of RIDA’s transfer provision, and we construe the habeas petition as a timely filed petition for review. See Alvarez-Barajas, 418 F.3d at 1053. This changes the decision we review, and we now review the BIA’s decision, not the district court order. Id. In Fernandez v. Gonzales, we explained that this Court lacks jurisdiction over the BIA’s “denial of a motion to reopen that pertains only to the merits basis for a previously-made discretionary determination under [8 U.S.C. § 1252(a)(2)(B)®].” 439 F.3d 592, 603 (9th Cir.2006). Here, we have jurisdiction over the BIA’s denial of Singh’s motion to reopen because the proceedings below did not involve any of the enumerated provisions in § 1252(a)(2)(B)(I). See Ray v. Gonzales, 439 F.3d 582, 588-90 (9th Cir.2006) (exercising jurisdiction and finding that the petitioner was entitled to equitable tolling of the deadlines and numerical restrictions for the motion to reopen because he acted with appropriate diligence in discovering the deficient representation); Iturribarria v. INS, 321 F.3d 889, 897-99 (9th Cir.2003) (exercising jurisdiction over a claim of entitlement to equitable tolling and the particular issue of due diligence). We therefore conclude that we have jurisdiction over Singh’s habeas petition because it was a challenge to an order of removal “pending” in the district court at the time of enactment of the REAL ID Act and therefore falls within the scope of RIDA’s transfer provision. III. STANDARD OF REVIEW We review the BIA’s ruling on a motion to reopen for abuse of discretion. Nath v. Gonzales, 467 F.3d 1185, 1187 (9th Cir.2006). We review purely legal questions, such as due process claims, de novo. Itiurribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). IV. DISCUSSION Singh contends that the BIA erred in denying his motion to reopen" }, { "docid": "22189236", "title": "", "text": "were terminated by application of pertinent statutes and regulations, not as the result of ineffective assistance of counsel,” is clearly erroneous. Indeed, in his motion to reopen Alcala specifically argued before the BIA that, given the existence of “two conflicting interpretations of the interplay” between the provisions governing reinstatement of removal, waiver of inadmissibility, and adjustment of status, the IJ would have been able to grant the discretionary relief Alcala sought and might have done so had counsel effectively presented the arguments in Alcala’s favor. In the BIA decision denying Alcala’s motion to reopen, the Board strangely characterizes Alcala’s “Motion To Reopen Based On Ineffective Assistance Of Counsel” as a motion to reconsider, then asserts that it will nonetheless construe this motion as “one to reopen.” The decision also states “it is difficult to envision what [Alcala’s counsel] could have argued at the hearing to avoid termination of proceedings,” although Alcala’s motion presented the same argument for granting discretionary relief that we later accepted. See Perez-Gonzalez, 379 F.3d at 795-96(“The statutory provisions in § 241(a)(5), § 245(i), and § 212(a) should be read to harmonize with one another, rather than allowing § 241(a)(5) to render the other provisions totally or partially meaningless.”). The BIA’s cursory, borderline-inaccurate resolution of Alcala’s motion to reopen reveals an abuse of discretion that further solidifies the appropriateness of our review. Cf. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005) (“We have long held that the BIA abuses its discretion when it fails to provide a reasoned explanation for its actions.”). Alcala’s potentially meritorious ineffective assistance claim gives us jurisdiction over his appeal from the BIA’s denial of his motion to reopen because it states a colorable due process claim that we are authorized to review under 8 U.S.C. § 1252(a)(2)(D). Indeed, we have on several occasions explicitly acknowledged our potential jurisdiction over appeals such as Alcala’s. See Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir.2006) (per curiam) (“This court retains jurisdiction over petitions for review that raise colorable constitutional claims or questions of law.”); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir.2003)" }, { "docid": "6469728", "title": "", "text": "a motion to reopen Oliveras’ immigration proceedings on grounds that she had been denied effective assistance of counsel by Attorney Luff. The Immigration Judge (“IJ”) denied this motion on December 20, 2002, finding that it was time-barred. Oliveras appealed this denial to the BIA, who on February 5, 2004, affirmed the IJ’s order. Specifically, the BIA found that Oliveras had failed to satisfy the requirements for the establishment of an ineffective assistance of counsel claim under BIA precedents in In re Assaad, 23 I. & N. Dec. 553 (BIA 2003) and Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Oliveras did not seek judicial review. Three years later, on March 30, 2007, Oliveras’ fourth lawyer filed a second motion to reopen Oliveras’ immigration proceedings directly with the BIA. In that petition, Oliveras alleged that she had fixed the shortcomings of her ineffective assistance claim by fulfilling all of the Lo-zada requirements. The BIA nonetheless denied this motion on September 27, 2007, finding that it was both time and number-barred. The BIA also held that equitable tolling did not apply to Oliveras’ second petition because Oliveras had failed to exercise due diligence. Oliveras now seeks judicial review. II. Discussion A. Standard of Review Motions to reopen removal proceedings are disfavored as contrary to the “compelling public interests in finality and the expeditious processing of proceedings.” Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir.2007) (quoting Raza v. Gonzáles, 484 F.3d 125, 127 (1st Cir.2007)). Consistent with this policy, we review the BIA’s denial of a motion to reopen under a deferential abuse of discretion standard. Kechichian v. Mukasey, 535 F.3d 15, 22 (1st Cir.2008). Accordingly, we will uphold the denial of a motion to reopen unless we conclude that the BIA either committed a material error of law or exercised its authority in an arbitrary, capricious or irrational manner. Id. In carrying out this inquiry, we review the BIA’s findings of law de novo, granting due deference to the BIA’s reasonable interpretation of the statutes and regulations within its purview. See Lin v. Mukasey, 521 F.3d 22, 26" }, { "docid": "22717061", "title": "", "text": "discretion, if the claim were being reviewed on the merits. See Arrozal, 159 F.3d at 433; see also Watkins v. INS, 63 F.3d 844, 849 (9th Cir.1995) (stating that the BIA abuses its discretion when it “fails to state its reasons and show proper consideration of all factors when weighing equities and denying relief’). Moreover, despite the INS’ argument to the contrary, the BIA did not give careful and individualized consideration to the hardship that petitioners’ United States citizen children would suffer as a result of their deportation, as it is required to do. See Jara-Navarrete v. INS, 813 F.2d 1340, 1343(9th Cir.1986). We thus hold that the constitutionally ineffective assistance rendered by Torres and his associates constitutes an independent ground requiring reversal of the BIA’s denial of petitioners’ motion to reopen because it likely resulted in prejudice to petitioners. V. CONCLUSION We conclude that the BIA’s refusal to reopen petitioners’ deportation proceedings was an abuse of discretion. The defective representation petitioners received equitably tolled the numerical limit on motions to reopen and constituted ineffective assistance of counsel, requiring a new hearing on the issue of suspension of deportation. The petition for review is granted. The BIA’s decision is REVERSED and REMANDED with directions to grant petitioners’ motion to reopen. . After the appellate brief was filed, petitioners claim that Immigration and Naturalization Service (\"INS”) agents came to deport them. Petitioners also allege that at some later point they paid Torres $450 to block deportation. . We also have jurisdiction to hear petitioners' due process claims. Antonio-Cruz v. INS, 147 F.3d 1129, 1130 (9th Cir.1998) (holding that § 309(c)(4)(E) of IIRIRA does not deprive this Court of jurisdiction to hear due process challenges to immigration decisions). . In its ruling on the motion to reopen, the BIA suggests that the fact that petitioners did not raise their ineffective assistance of counsel claim on appeal or in their motion for reconsideration indicates that they were not diligent in ascertaining the fraud. However, petitioners did not raise an ineffective assistance of counsel claim at those times because they were still being represented" }, { "docid": "22744050", "title": "", "text": "the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), but found that Avagyan “ha[d] not acted with due diligence” and “failed to explain her 14)4 month delay in filing her present motion following the Board’s dismissal of her appeal.” The Board noted that the motion to reopen was filed two and a half years after the end of Spence’s representation, and concluded that Avagyan “knew what documents were submitted by [Spence] into evidence before the Immigration Judge.” It stated that Avagyan “fails [to] explain the delay in seeking new counsel if she was dissatisfied with the representation that she had previously obtained.” The BIA did not, however, specifically address Avagyan’s diligence with respect to her claim that prior counsel ineffectively advised her on adjustment of status. Avagyan timely petitioned for review. II. “Although there is no Sixth Amendment right to counsel in a deporta tion proceeding, the due process guarantees of the Fifth Amendment ‘still must be afforded to an alien petitioner.’ ” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.2005) (quoting Singh v. Ashcroft, 367 F.3d 1182, 1186 (9th Cir.2004)). This court has long recognized that “[[Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir.2006) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)); see also Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004); Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.2003); Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999). If the ineffective assistance of an alien’s counsel prevents him from timely filing a motion to reopen, counsel has prevented the alien from reasonably presenting his case and denied him due process. Consequently, we “recognize[ ] equitable tolling of deadlines and numerical limits on motions to reopen ... during periods when a petitioner is prevented from filing because of a deception, fraud, or error, as long as the petitioner acts with due diligence" }, { "docid": "22651978", "title": "", "text": "the law.” As a motion to reconsider, Mr. Iturri-barria’s motion was due within 30 days of the BIA’s decision on his appeal — that is, on or before November 6, 2000. The BIA declined to apply equitable tolling to the deadline. Lopez did not apply, declared the BIA, because “the claims that the respondent makes are not directed against an individual posing as an attorney.” The BIA also held that because current counsel received Mr. Iturribarria’s file on October 19, 2000, there was sufficient time to file a motion to reconsider before the deadline. The BIA commented, finally, that even if it were to reach the merits of the motion to reconsider, Mr. Iturribarria’s ineffective assistance of counsel claims would fail because he had not shown prejudice: The respondent’s statement of his suspension claim is weak. The respondent alleged that his deportation would cause hardship to his three citizen children .... However, the respondent failed in his motion to allege any hardships that could be fairly characterized as “extreme.” Mr. Iturribarria petitions this court for review of the BIA’s decision. ANALYSIS Proceedings in this case commenced prior to April 1, 1997. We therefore have jurisdiction to review a BIA denial of a motion to reopen pursuant to 8 U.S.C. § 1005a(a) (1997), as modified by the transitional rules for judicial review set forth in § 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). See Pub.L. No. 104-208, 110 Stat. 3009, 625-26 (Sept. 30, 1996). This court reviews BIA denials of motions to reopen for abuse of discretion, Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000), but reviews purely legal questions, such as due process claims, de novo. See Lopez, 184 F.3d at 1099. A. Motion to Reopen or Motion to Reconsider? Mr. Iturribarria contends that the BIA violated due process in applying the regulations governing motions to reopen and motions to reconsider. Specifically, he argues that his motion based on alleged ineffective assistance of counsel should have been construed under relevant regulations as a motion to reopen rather than a motion to reconsider. If it were," }, { "docid": "22197099", "title": "", "text": "September 7, 2001. On November 8, 1999, the IJ denied Prado’s application for suspension of deportation on the ground that she had not shown the requisite level of hardship to herself or her U.S. citizen children. Prado filed a pro se appeal, allegedly prepared by Ms. Rodriguez. On January 8, 2003, the BIA affirmed the denial of suspension of deportation without an opinion. The BIA. denied Prado’s subsequent pro se motion to reconsider on the merits on July 16, 2003. On October 14, 2003, almost four years after Hernandez’s appeal was dismissed and ten months after Prado’s appeal was dismissed, petitioners, now represented by current counsel, filed a motion to reopen. They argued that they were denied due process and are entitled to have their de portation proceedings reopened because of the deficient assistance they received from Ms. Rodriguez. On April 28, 2004, the BIA denied their motion, and petitioners timely filed this petition for review. II. STANDARD OF REVIEW This court reviews the BIA’s ruling on a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Questions of law, as well as claims of due process violations, are reviewed de novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). III. ANALYSIS Petitioners claim their deportation proceedings warrant reopening because their due process rights were violated by the deficient assistance of an immigration consultant. They assert an ineffective assistance of counsel claim even though they concede they did not retain counsel. The BIA found that petitioners could not base such a claim on the deficient advice of a non-attorney, relying on our decision in Singh-Bhathal v. INS 170 F.3d 943 (9th Cir.1999). In Singh-Bhathal, we held that reliance on the mistaken advice of a non-attorney immigration consultant was insufficient to demonstrate the “exceptional circumstances” necessary for reopening an in absentia deportation order. Id. at 946-47. “Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez v." }, { "docid": "22852921", "title": "", "text": "BOGGS, Chief Judge. The Fifth Amendment to the Constitution guarantees due process of law to aliens in a removal proceeding. Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). When an alien makes a claim of ineffective assistance of counsel in a removal proceeding he “carries the burden of establishing that ineffective assistance of counsel prejudiced him or denied him fundamental fairness in order to prove that he has suffered a denial of due process.” Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir.2005). In this case, petitioner Raid Sako does not assert prejudice because an appeal of his removal proceeding would have been successful. Rather, the only claimed prejudice is denial of an opportunity to remain in this country while awaiting the outcome of the appeal — -the appeal that his attorneys failed to file. We hold that denial of this opportunity does not constitute a denial of due process. Moreover, we hold that the Board of Immigration Appeals (“BIA”) did not abuse its discretion in denying Sako’s motion to reopen based on its finding that Sako had not shown prejudice. Accordingly, we affirm. In this case, Sako appeals the denial of his motion to reopen removal proceedings due to ineffective assistance of counsel. The immigration judge ordered Sako removed to Iraq and the order was affirmed on administrative appeal. Subsequently, Sako moved to reopen the proceedings, alleging that two of his former counsel were ineffective in failing timely to petition for judicial review of his administrative appeal, and requesting that the matter be reopened to permit the filing of a petition for judicial review. The motion was denied because Sako failed to show prejudice, even though he complied with most of the procedural requirements for an ineffective assistance claim. I Sako is a native and citizen of Iraq, born and raised in Baghdad. On March 5, 1998, he applied for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158. Sako claims that he suf fered both religious and political persecution as a minority Chaldean Christian in Iraq under" }, { "docid": "22692656", "title": "", "text": "the undated letter demonstrate that Salazar received an adequate “opportunity to respond” before Reyes filed his motion to reopen. In theory, Reyes could have mailed the complaint letter and filed the motion to reopen simultaneously, thereby affording Salazar no opportunity to furnish a timely response and thus sidestepping Lozada’s requirement to submit “any subsequent response from counsel” with the motion to reopen, Lozada, 19 I. & N. Dec. 637, at 639. Reyes’s failure to meet his burden with respect to these issues is significant. In Lozada, the Board explained that the notice requirement provides a mechanism by which the IJ may more accurately assess the merits of a petitioner’s ineffective assistance claim. “[T]he potential for abuse is apparent,” the Board cautioned, “where no mechanism exists for allowing former counsel, whose integrity or competence is being impugned, to present his version of events if he so chooses, thereby discouraging baseless allegations.” Id. Here, Reyes may have put Salazar on notice concerning the substance of his ineffective assistance allegations (i.e., if he actually sent Salazar a copy of the complaint letter), but he offers absolutely no evidence that Salazar enjoyed a timely opportunity to respond. Because Reyes cannot prove he gave Salazar notice of the ineffective assistance allegations or an adequate opportunity to respond, we conclude that Reyes has not substantially satisfied Lozada. Id. PETITION DENIED OPINION WALLACE, Senior Circuit Judge: Pedro Vilarde Reyes petitions for review of a Board of Immigration Appeals (Board) order denying his motion to reopen deportation proceedings. Reyes argues that the Board abused its discretion because his motion to reopen substantially complied with the Board’s threshold procedural requirements outlined in Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988). We have jurisdiction to review the Board’s decision pursuant to 8 U.S.C. § 1252(b). Monjaraz-Munoz v. INS, 327 F.3d 892, 894 (9th Cir.2003). We conclude that the Board did not abuse its discretion, and we deny Reyes’s petition for review. I. Reyes, a native and citizen of the Philippines, entered the United States on a non-immigrant visa on February 5, 1990. He remained" }, { "docid": "15140631", "title": "", "text": "appeal.” U.S.C.A. dkt. sht. No. 09-2511-ag, entry at June 11, 2009. She attached the BIA’s “reissued” 2003 decision, and stated in her petition for review, also filed on June 11, 2009, that the BIA “dismissed [her] appeal on May 12, 2009, after reissuing its original decision.” Id. According to her petition, the “issue presented on appeal is whether counsel’s withdrawal of representation constituted ineffective assistance of caused [sic ] to such an extent that it rule [sic] to the level of a due process violation.” Id. Notwithstanding her petition for review, Lewis’s brief apparently addresses only “[w]hether the [BIA’s] denial of her motion to reopen was an abuse of discretion.” In her brief, Lewis raises two principal arguments as to why we should grant her petition and remand her case. First, she argues that the BIA’s decision denying her motion to reopen is arbitrary and capricious because it concludes that her prior counsel was ineffective but nevertheless faults her for the delay in filing her motion to reopen. Second, Lewis challenges the BIA’s conduct, in July 2003, in denying her appeal on the basis of her failure to file a brief. The government replies that the BIA properly exercised its discretion in denying her motion to reopen because her ineffective assistance of counsel claim was untimely and she failed to challenge the BIA’s determination that she did not exercise due diligence. The government, however, does not address whether Lewis has timely and properly petitioned for review of the BIA’s 2003 decision dismissing her appeal as reissued in May 2009. Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), holds that the time to file a petition for review of a BIA decision is jurisdictional. “Pursuant to 8 U.S.C. § 1252(b)(1), we lack jurisdiction over a petition that is filed more than 30 days after the BIA’s final order of removal.” Lewis v. Gonzales, 481 F.3d 125, 128-29 (2d Cir.2007). Joining our sister Circuit, we hold that the BIA’s reissuance of its decision triggers a new thirty-day period to obtain judicial review. See Firmansjah v. Ashcroft," }, { "docid": "19977401", "title": "", "text": "including: (1) additional photographs; (2) joint bank account statements; (3) letters from friends declaring the marriage to be legitimate; (4) a joint insurance policy; (5) a joint certificate of title to a car; (6) joint phone bills; (7) a statement of joint occupancy of their residence; and (8) the birth certificate of her son, Abihu Kassaye Teba, who was born in 2006. In addition, on June 22, 2006, her 1-130 petition had been approved. Ahmed filed a supplemental declaration stating that although Getachew informed her that “she would need to prove that her marriage was real,” Getachew did not explain how to do so. Getachew asked for a wedding photograph, but never requested any additional proof. According to Ahmed, she would have provided additional evidence if she had been asked. On August 14, 2007, the BIA denied Ahmed’s second motion to reopen. The BIA determined that Ahmed had failed to establish prejudice because Ahmed’s first motion to reopen would have been denied even if it had been timely. The BIA found that the DHS had opposed the motion when it was filed, and held that “such opposition would have mandated a denial of the motion under Matter of Velarde.” (emphasis added). It also concluded that Ahmed could not have proven, by clear and convincing evidence, that her marriage was bona fide. Ahmed subsequently petitioned this court for review. STANDARD OF REVIEW This court “review[s] BIA rulings on motions to reopen ... for abuse of discretion and reverse[s] only if the Board acted arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). Questions of law, including ineffective assistance of counsel claims, are reviewed de novo. Id. at 791-92. DISCUSSION In removal proceedings, “[i]nef-fective assistance of counsel ... amounts to a violation of due process under the Fifth Amendment if ‘the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ ” Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857-58 (9th Cir.2004) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). “To prevail, the petitioner must demonstrate first that counsel" }, { "docid": "22744049", "title": "", "text": "file at the immigration court on January 4, 2006. On January 17, 2006, he reviewed the file with Avagyan and informed her that Spence, Martinez, and Gevorg had rendered ineffective assistance. He also informed Avagyan that Gevorg was not an attorney. On March 16, 2006, Avagyan, through counsel, informed Spence of the allegations against him. Spence did not reply. On March 27, 2006, Avagyan filed a complaint against Spence with the state bar. On April 5, 2006 (eighty-five days after reviewing her file with present counsel), Avagyan filed a motion to reopen with the BIA, claiming that Spence, Martinez, and Gevorg rendered ineffective assistance of counsel. Specifically, Avagyan alleged that Spence and Martinez rendered ineffective assistance in preparing her asylum and withholding of removal claims. Further, she alleged that Spence, Martinez, and Gevorg failed to advise her that she needed to file a visa petition and application for adjustment of status before her removal proceedings concluded. On July 17, 2006, the BIA denied the motion as untimely. The Board held that Avagyan had complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), but found that Avagyan “ha[d] not acted with due diligence” and “failed to explain her 14)4 month delay in filing her present motion following the Board’s dismissal of her appeal.” The Board noted that the motion to reopen was filed two and a half years after the end of Spence’s representation, and concluded that Avagyan “knew what documents were submitted by [Spence] into evidence before the Immigration Judge.” It stated that Avagyan “fails [to] explain the delay in seeking new counsel if she was dissatisfied with the representation that she had previously obtained.” The BIA did not, however, specifically address Avagyan’s diligence with respect to her claim that prior counsel ineffectively advised her on adjustment of status. Avagyan timely petitioned for review. II. “Although there is no Sixth Amendment right to counsel in a deporta tion proceeding, the due process guarantees of the Fifth Amendment ‘still must be afforded to an alien petitioner.’ ” Mohammed v. Gonzales, 400 F.3d 785, 793" }, { "docid": "22189237", "title": "", "text": "§ 245(i), and § 212(a) should be read to harmonize with one another, rather than allowing § 241(a)(5) to render the other provisions totally or partially meaningless.”). The BIA’s cursory, borderline-inaccurate resolution of Alcala’s motion to reopen reveals an abuse of discretion that further solidifies the appropriateness of our review. Cf. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005) (“We have long held that the BIA abuses its discretion when it fails to provide a reasoned explanation for its actions.”). Alcala’s potentially meritorious ineffective assistance claim gives us jurisdiction over his appeal from the BIA’s denial of his motion to reopen because it states a colorable due process claim that we are authorized to review under 8 U.S.C. § 1252(a)(2)(D). Indeed, we have on several occasions explicitly acknowledged our potential jurisdiction over appeals such as Alcala’s. See Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir.2006) (per curiam) (“This court retains jurisdiction over petitions for review that raise colorable constitutional claims or questions of law.”); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir.2003) (“We retain jurisdiction to review constitutional claims, even when those claims address a discretionary decision.”); cf. Lopez v. Gonzales, 210 Fed.Appx. 690, 691 (9th Cir.2006) (unpublished table decision) (“Byron Lopez ... petitions for review of the[BIA’s] order summarily affirming, without opinion, an [IJ’s] order denying his application for adjustment of status.... Lopez’s contention that the IJ failed to properly weigh the equities is not a colorable due process claim, and so does not confer jurisdiction.” (internal citations omitted)). If we relinquish jurisdiction here, it is likely that we relegate the egregious performance of Alcala’s counsel to an unreviewable purgatory. Though we acknowledged in Morales-Izquierdo v. Gonzales that “individual petitioners may raise procedural [due process] defects in their particular [reinstatement] cases,” it is doubtful that this review would encompass matters beyond the “narrow and mechanical determinations immigration officers must make” — determinations that have already been made here — in order to reinstate orders of removal. 486 F.3d at 496; see also Garcia de Rincon v. DHS, 539 F.3d 1133, 1137 (9th Cir.2008) (“[R]eview of the" }, { "docid": "23150115", "title": "", "text": "(9th Cir.2002); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Under IIRIRA’s transitional rules, we have jurisdiction to review the BIA’s denial of a motion to reopen under the now-repealed § 106(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1105a(a). See Rodriguez-Lariz, 282 F.3d at 1222; Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). The Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), supra note 2, provides that we may review claims under the Convention Against Torture only as part of review of a final order of removal. FARRA, § 2242(d). Denial of a motion to reopen to present a claim under the Convention qualifies as a final order of removal. See Khourassany v. INS, 208 F.3d 1096, 1099-1100 & n. 4 (9th Cir.2000). We therefore have jurisdiction to address Hamoui’s petition for review. We review for an abuse of discretion the BIA’s denial of a motion to reopen. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004). The BIA abuses its discretion when it acts “ ‘arbitrarily, irrationally, or contrary to law.’ ” Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)). We review de novo questions of law and claims of due process violations in deportation proceedings. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002); Rodriguez-Lariz, 282 F.3d at 1222. We review the BIA’s factual findings for substantial evidence. See Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004). II A Before the BIA, the INS did not contest Hamoui’s assertions that his failure timely to file a motion to reopen for purposes of a claim under the Convention Against Torture was due to the ineffective assistance of his prior counsel. The BIA recited the many failures of counsel and assumed deficient performance. We conclude that the attorneys’ constitutionally deficient performance was established. Ineffective assistance of counsel amounting to a due process violation permits untimely reopening. See Varela v. INS, 204 F.3d" }, { "docid": "19977402", "title": "", "text": "opposed the motion when it was filed, and held that “such opposition would have mandated a denial of the motion under Matter of Velarde.” (emphasis added). It also concluded that Ahmed could not have proven, by clear and convincing evidence, that her marriage was bona fide. Ahmed subsequently petitioned this court for review. STANDARD OF REVIEW This court “review[s] BIA rulings on motions to reopen ... for abuse of discretion and reverse[s] only if the Board acted arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). Questions of law, including ineffective assistance of counsel claims, are reviewed de novo. Id. at 791-92. DISCUSSION In removal proceedings, “[i]nef-fective assistance of counsel ... amounts to a violation of due process under the Fifth Amendment if ‘the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ ” Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857-58 (9th Cir.2004) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). “To prevail, the petitioner must demonstrate first that counsel failed to perform with sufficient competence, and, second, that she was prejudiced by counsel’s performance.” Mohammed, 400 F.3d at 793. The government argues only in passing that Getachew and Obayemi provided competent representation. We conclude that their performance was deficient. While an attorney’s representation need not “be brilliant,” it “cannot serve to make [the] immigration hearing so fundamentally unfair that [the alien] was prevented from reasonably presenting his case.” Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004) (internal quotations omitted). In failing to advise Ahmed of the necessary documentation for the motion to reopen “in time for [her] to gather it,” see Iturribarria v. INS, 321 F.3d 889, 900-01 (9th Cir.2003); in submitting the motion to reopen well beyond the deadline; in arguing for an exception to the deadline that clearly did not apply; and in misrepresenting the facts or law to Ahmed about the timeliness of the motion, Getachew and Obayemi prevented Ahmed from reasonably presenting her case. That is surely not competent representation. The government argues more adamantly that, regardless of counsel’s" }, { "docid": "22657173", "title": "", "text": "the substance of the motion and attempted to clarify its first opinion. It acknowledged its “typographical errors” and explained that Mohamed “did not demonstrate any prejudice resulting from her prior counsel’s representation such as would affect the outcome of her case and would amount to a due process violation.” Alternatively, the BIA considered the motion as a motion to reconsider and concluded that, “[t]o the extent that the current motion is subject to being construed as a motion to reconsider, we find that it must be denied because [Mohamed] has not demonstrated any substantive error in our [first] decision....” Mohamed petitioned for review of the BIA’s decision denying her second motion. We granted her motion to consolidate review of the two orders denying her motions to reconsider and reopen. Two days before we heard oral argument, the government moved to remand the case so that the BIA could reconsider and clarify its decisions. II. ANALYSIS We have jurisdiction over Mohamed’s petitions for review pursuant to 8 U.S.C. § 1252. We review BIA rulings on motions to reopen and reconsider for abuse of discretion and reverse only if the Board acted arbitrarily, irrationally, or contrary to law. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002); Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). We review factual findings for substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). Questions of law, including claims of due process violations due to ineffective assistance, we review de novo. Id. 1) whether [it] should reissue its [first] decision, or take other measures to ensure that the decision sets forth the intended statement of the agency on the petitioner's first motion to reopen, and 2) whether petitioner’s second motion to reopen is barred by the numerical limitation on motions to reopen, in light of any action taken upon remand with regard to the [first] decision. A. Procedural issues As described above, Mohamed’s case is characterized by a series of errors committed by the agency responsible for adjudicating her claim, and by her attorneys. Before considering the question whether Mohamed has demonstrated ineffective assistance" } ]

[ { "docid": "22473878", "title": "", "text": "HAYNES, Circuit Judge, joined by STEWART, Chief Judge, and DENNIS, PRADO, OWEN, ELROD, SOUTHWICK, GRAVES, and COSTA, Circuit Judges: In this case, we address whether the deportation of a defendant renders that defendant’s appeal of his term of supervised release moot. We hold that such deportation, by itself, does not render the appeal moot. We thus return this case to the panel for final disposition. I. Facts and Proceedings After pleading guilty to illegal reentry after deportation pursuant to a plea agreement, David Heredia-Holguin received a sentence of twelve months of imprisonment and three years of supervised release. The term of supervised release contains two special conditions: (1) he cannot illegally reenter the United States; and (2) he cannot consume alcohol or other intoxicants. Heredia-Holguin did not object to any part of his sentence. Heredia-Holguin appealed, but before he could file his initial brief, he completed his prison sentence and was deported. Accordingly, Heredia-Holguin conceded that his appeal was moot under the existing case of United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir.2007), and argued that his term of supervised release should be equitably vacated. In response, the government moved to dismiss the appeal as moot. A panel of this court ordered supplemental briefing to address, among other things, whether Heredia-Holguin’s appeal of his unexpired term of supervised release was mooted by his release from prison and deportation from the United States. In response, while Heredia-Holguin continued to press for equitable vacatur of his sentence, he also argued that this court should reconsider en banc the holding of Rosenbaumr-Alanis. In its decision, a panel of this court noted that “[t]wo Fifth Circuit decisions address the question of whether deportation moots a sentencing appeal. These decisions, however, arrived at opposite conclusions.” United States v. Heredia-Holguin, 789 F.3d 625, 627 (5th Cir.), reh’g en banc granted, 803 F.3d 745 (5th Cir.2015). The panel further analyzed the two Fifth Circuit opinions—United States v. Lares-Meraz, 452 F.3d 352 (5th Cir.2006), and Rosenbaumr-Alanis — and noted that it “ha[d] difficulty seeing the distinction that our court tried to draw in Rosen-baumr-Alanis when it" } ]

[ { "docid": "18990142", "title": "", "text": "withdraw under Anders because there was a nonfrivolous appellate issue. Adding to the novelty of the argument, Davis contends that the Davis I panel also did not treat the issue as frivolous because the court ruled against Davis on the merits of the issue, rather than merely dismissing the issue as frivolous. Because the issue was not frivolous, and was not treated as frivolous by either counsel or the court, Davis argues that the court violated his due process rights by ultimately allowing counsel to withdraw. Even if we accept the premise upon which Davis proceeds, he cannot prevail due to the rigors of Strickland’s prejudice prong. There is no probability that the outcome of Davis’s direct appeal would have been any different had counsel not asked to withdraw pursuant to Anders. Generally, when counsel submits an Anders brief, the court independently reviews the record for any nonfrivolous issue. Anders, 386 U.S. at 744, 87 S.Ct. 1396 (noting that it is the duty of the court, not counsel, to review the record and ultimately decide whether the case is wholly frivolous). If the court finds a nonfrivolous issue, it will direct counsel to more fully brief the issue. Cf. United States v. Phillips, 390 F.3d 574, 576 (8th Cir.2004) (noting that we denied the Anders motion to withdraw and directed counsel to more fully brief two issues). By his own argument, Davis concedes that his appellate counsel fully briefed the drug-quantity issue. His only complaint concerns the motion to withdraw. The court’s usual remedy when confronted with a nonfrivolous issue in an Anders brief— order counsel to more fully brief the issue — was already accomplished in this case. Accordingly, Davis cannot establish prejudice. III. CONCLUSION We affirm the district court. . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa. . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after examining the record and concluding that an appeal would be wholly without merit, counsel may file a brief informing the court of any point that" }, { "docid": "22655600", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: Defendant Ramona Flores appeals after her guilty plea conviction for being found illegally in the United States after having been previously deported, in violation of 8 U.S.C. § 1326. Flores’ counsel has filed a motion to withdraw and a brief that relies on Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that the appeal is without merit. We grant the motion and take this opportunity to explain what we expect in an Anders brief and why the brief in this case is sufficient. I. Nicaraguan national Ramona Flores pleaded guilty, pursuant to a written plea agreement, to being found illegally in the U.S. after having been previously deported, in violation of 8 U.S.C. § 1326. The plea agreement did not contain an appeal waiver. The factual basis that Flores admitted to be true at rearraignment stated that she previously was deported from the U.S. on May 10, 2006, and that she was again found inside the U.S. on July 8, 2009. See United States v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir.2008) (holding that the fact of removal must be admitted or proven beyond a reasonable doubt). The PSR calculated Flores’ total offense level at 21. This included a 16-level increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because she had previously been deported following a felony conviction for a crime of violence, specifically, a December 2000 Florida conviction for aggravated assault with a deadly weapon. It determined Flores’ criminal history score to be III, subjecting her to a guidelines range of 46 to 57 months of imprisonment. Flores did not object to the PSR’s calculations. The district court sentenced her at the low end of the guidelines range, 46 months, followed by a three-year period of supervised release. Flores timely appealed. II. The Federal Public Defender appointed to represent Flores has filed a motion for leave to withdraw and an Anders brief. Anders established standards for a court-appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an issue of arguable merit." }, { "docid": "14583957", "title": "", "text": "PER CURIAM. Alan King used stolen social security numbers to poach Hurricane Katrina relief funds, student-loan money, Pell Grant money, and credit at various banks and retailers. King pleaded guilty to stealing government property, 18 U.S.C. § 641, loan fraud, id. § 1014, false representation of social security numbers, 42 U.S.C. § 408(a)(7)(B), and federal student financial aid fraud, 20 U.S.C. § 1097(a). The district court sentenced King to a total of 105 months’ imprisonment, along with five years’ supervised release, $183,845 in restitution, and a $400 special assessment. King filed a notice of appeal; perhaps anticipating our opinion in United States v. Gammicchia, 498 F.3d 467 (7th Cir.2007) (when a criminal appeal is frivolous, the defendant’s attorneys should file an An-ders motion), his appointed counsel moved to withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). King has responded to counsel’s facially adequate brief, see Cir. R. 51(b), so we limit our review to the potential issues identified by counsel and King. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We begin with King’s belated contention that he was not of “sound mind” when he pleaded guilty because he had ingested twice his morning dose of Elavil, a drug used to treat depression and anxiety. But other than saying that the antidepressant elevated his mood, King has not explained how it possibly could have impaired his rational faculties. See, e.g., United States v. Grimes, 173 F.3d 634, 636-37 (7th Cir.1999); United States v. Groll, 992 F.2d 755, 758 n. 2 (7th Cir.1993). Moreover, King has given us no reason to doubt the veracity of his sworn statements that, notwithstanding his ingestion of the drug, he understood the charges against him, the rights that he was relinquishing by pleading guilty, and the consequences of his plea. See Nunez v. United States, 495 F.3d 544, 546 (7th Cir.2007); United States v. Fuller, 15 F.3d 646, 650 & n. 3 (7th Cir.1994). Indeed, only a few minutes after he entered his plea, King delivered" }, { "docid": "22540513", "title": "", "text": "ROBERT M. PARKER, Circuit Judge: Counsel for Tracy Joseph Wagner filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel now asks that he be allowed to withdraw. Wagner similarly requests that counsel be allowed to withdraw so that he can proceed pro se on appeal. Wagner further requests that counsel’s Anders brief be stricken. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that after a conscientious examination of the record, if appointed counsel finds a criminal defendant’s case to be wholly frivolous, he or she should so advise the court and request permission to withdraw. This request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The court further required that a copy of the brief be furnished to the defendant so as to allow him an oppor tunity to raise any issues he so chooses. Id. The Anders decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and" }, { "docid": "82594", "title": "", "text": "PER CURIAM. Appellant Jonus Wheeler pled guilty in 2006 to possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and was sentenced to 108 months in prison followed by 36 months of supervised release. Ten months after he was released from prison and began serving the term of supervision, the government sought revocation, see 18 U.S.C. § 3583(e) and (g), alleging that Wheeler had tested positive for (and thus possessed) marijuana four times, missed nine drug-treatment sessions, and twice failed to submit a monthly supervision report. After Wheeler admitted the allegations, the district court revoked his supervised release and imposed 21 months of reimprisonment to be followed by another 12 months of supervised release. Wheeler filed a notice of appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). There is no constitutional right to counsel in a revocation proceeding where, as here, the defendant admits violating the conditions of his supervision and neither challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171-72 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). Thus the Anders safeguards do not govern our review of counsel’s motion to withdraw. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Eskridge, 445 F.3d at 933. We may affirm “if we determine that the appeal, though not frivolous, is also not meritorious.” Eskridge, 445 F.3d at 933. We invited Wheeler to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that explains the nature of the ease and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" }, { "docid": "23465262", "title": "", "text": "OPINION OF THE COURT HUTCHINSON, Circuit Judge. Kathy-Ann Tannis (Tannis) appeals a judgment of conviction and sentence the United States District Court for the District of New Jersey imposed on her after she pled guilty to a charge of possessing approximately 374 grams of a mixture containing cocaine base, with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1). Tannis was sentenced pursuant to the Sentencing Reform Act. The applicable guideline prescribed a sentencing range of 121 to 151 months. The district court permitted a downward departure to the statutory minimum and imposed a sentence of 120 months followed by a five-year term of supervised release. Her motion for an extension of time to file a notice of appeal was allowed by the district court. Appellant’s Appendix (App.) at 2a. We have appellate jurisdiction over her appeal under 28 U.S.C.A. § 1291 (West Supp.1991). The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). Tannis’s counsel filed a brief pursuant to the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with Anders, counsel stated his opinion that Tannis’s appeal does not present any non-frivolous issues for review. However, as Anders requires, he went on to raise and discuss two possible questions. The first concerned the plea proceeding and the second concerned the sentencing process. After counsel filed the Anders brief in support of his motion for leave to withdraw, a motions panel of this Court granted Tannis an opportunity to file a pro se brief. When she failed to do so within the time set, she was granted an extension. Tannis did not file a pro se brief within the time set by the final extension, which expired on April 15, 1991. She has filed nothing in support of her argument to date. In accordance with Anders, we have independently considered the matters counsel raises in his Anders brief and also independently examined the record to determine whether it presents any non-frivolous issue that would justify our review. Having found" }, { "docid": "22655610", "title": "", "text": "searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested by other judges on the court and, with those changes, all active judges have assented." }, { "docid": "22655601", "title": "", "text": "v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir.2008) (holding that the fact of removal must be admitted or proven beyond a reasonable doubt). The PSR calculated Flores’ total offense level at 21. This included a 16-level increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because she had previously been deported following a felony conviction for a crime of violence, specifically, a December 2000 Florida conviction for aggravated assault with a deadly weapon. It determined Flores’ criminal history score to be III, subjecting her to a guidelines range of 46 to 57 months of imprisonment. Flores did not object to the PSR’s calculations. The district court sentenced her at the low end of the guidelines range, 46 months, followed by a three-year period of supervised release. Flores timely appealed. II. The Federal Public Defender appointed to represent Flores has filed a motion for leave to withdraw and an Anders brief. Anders established standards for a court-appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an issue of arguable merit. After a “conscientious examination” of the case, the attorney must “request permission to withdraw” and submit a “brief referring to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. Flores was informed of counsel’s motion to withdraw but has not filed a response. At this point our current practice is to examine the brief submitted by counsel raising anything in the record that might arguably support an appeal, examine any points raised by the appellant himself, and independently examine the record, to determine whether counsel has adequately identified all nonfrivolous issues. We write in this case to signal a change in this court’s approach to Anders cases. Our analysis must start with the Supreme Court’s seminal decision in Anders v. California. In Anders, after the California District Court of Appeal had appointed counsel to conduct a first appeal to that court from an indigent’s conviction, counsel informed the court by letter that after a study of the record and consultation with the accused, he had concluded" }, { "docid": "2445656", "title": "", "text": "McKAY, Circuit Judge. Mr. Prieto-Duran appeals the imposition of a seventy-two-month sentence for drug offenses. The sentence was pursuant to a valid plea agreement, or Memorandum of Understanding, under Fed.R.Crim.P. 11(e)(1)(c). According to 18 U.S.C. § 3742(c), “In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(c) of the Federal Rules of Criminal Procedure a defendant may not file a notice of appeal under paragraph (3) ... unless the sentence imposed is greater than the sentence set forth in such agreement.” Paragraph (3) provides that a defendant may appeal a sentence which “is greater than the sentence specified in the applicable guideline range.” Mr. Prieto-Duran received seventy-two months, a sentence to which he specifically agreed. He is complaining because the sentencing guidelines specified a range of sixty to sixty-three months for the offenses to which he pled. However, pursuant to the plea agreement, the government agreed to forego filing a sentence enhancement information for prior criminal activities under 21 U.S.C. § 851. This enhancement would have required a ten-year term of imprisonment. This is precisely the type of appeal which is barred by 18 U.S.C. § 3742(c)(1). See United States v. Bolinger, 940 F.2d 478 (9th Cir.1991); United States v. David, 967 F.2d 592 (9th Cir.1992) (unpublished opinion). We have no jurisdiction to review the trial court’s imposition of sentence in this matter. Accordingly, the appeal is dismissed. After review, we have concluded that defendant’s counsel properly filed an Anders brief in this case. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Prieto-Duran has filed a response to the Anders brief. We have considered his arguments and found them to be without merit. In addition, because there is no basis for an appeal, appellant’s motion for appointment of new counsel is denied. Counsel’s request for leave to withdraw is granted. DISMISSED." }, { "docid": "22703687", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. I. Donald Wayne Marvin pled guilty to conspiracy, robbery, and the use of a firearm during a crime of violence. Marvin wanted to appeal aspects of his sentencing, but Marvin’s counsel filed an Anders motion, requesting to withdraw from representing him and expressing his belief that there were no nonfrivolous arguments for appeal. After reviewing the brief, we conclude that it is inadequate, and deny counsel’s motion. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal. An-ders struck down a process that allowed courts of appeals to accept a mere assertion by counsel that he or she found the appeal to be “without merit.” Id. at 743, 87 S.Ct. 1396. The Court suggested, however, that if, after a “conscientious examination” of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After" }, { "docid": "22694768", "title": "", "text": "PER CURIAM. Several months ago, in United States v. Wagner, 103 F.3d 551 (7th Cir.1996), we clarified the procedure we follow when determining whether to accept a motion by a criminal, defendant’s lawyer to withdraw from representing a defendant on appeal because no nonfrivolous issues can be advanced. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our starting point is the Anders brief itself, which we review to see if it is adequate on its face. If it explains the nature of the case and intelligently discusses the issues that a case of the sort might be expected to involve, we will not conduct an independent review of the record to determine whether a more ingenious lawyer might have found additional issues that may not be frivolous. Instead, we confine our scrutiny of the record to the portions that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues she chose to discuss is reasonable and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we will have a sufficient basis for confidence in the lawyer’s competence to forego scrutiny of the rest of the record. Then, if we agree with the brief, we will grant the attorney’s request to withdraw as counsel and dismiss the appeal as meritless. We took this approach because a lawyer submitting an Anders brief is, in essence, offering an expert opinion that the appeal is devoid of merit. If the brief, on its face, is adequate, we think we can comfortably rely on the professional opinion it offers. We are also influenced by a defendant’s response, if any, to the Anders brief which must be served on the defendant. 7th Cir. R. 51(b). And although we do not attach conclusive weight to a defendant’s failure to respond to an Anders brief, it may, in fact, be an acknowledgment that the appeal should be abandoned as hopeless. Wagner at 552. The two eases before" }, { "docid": "14098565", "title": "", "text": "PER CURIAM: In this appeal, we consider the adequacy of defense counsel’s Anders brief where the defendant has advised counsel that he does not wish to challenge his guilty plea. We conclude that ordinarily counsel must file a transcript and brief the issues surrounding the plea unless the record reflects that the defendant has chosen not to challenge the plea. I. Pursuant to a written plea agreement, Julio Garcia (Garcia) pleaded guilty to possession with intent to distribute more than 500 grams of cocaine. The district court sentenced Garcia to 64 months of imprisonment and four years of supervised release. Garcia filed a timely notice of appeal. The Federal Public Defender (FPD), court-appointed counsel for Garcia, has filed a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Clerk of Court notified Garcia of his right to respond to counsel’s Anders brief, but he has not done so. Counsel stated in his brief that Garcia advised him that he did not wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United" }, { "docid": "10757147", "title": "", "text": "“without the effective consent of the owner” and “committing] or attempting] to commit a felony or theft.” On May 25, 2005, pursuant to a plea agreement with the government, Emeary pleaded guilty to the illegal-possession-of-firearms charge. The district court sentenced Emeary on December 7, 2005. The court classified Emeary as subject to the ACCA’s fifteen-year minimum sentence because, including the 1998 conviction under Texas Penal Code § 30.02(a)(3), he had been convicted of three “violent felonies.” The court sentenced Emeary to fifteen years of incarceration. Emeary filed a notice of appeal on May 13, 2009. On September 14, 2009, Emeary’s appointed attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), representing that he had reviewed the case and concluded that there were no nonfrivo-lous arguments to present on Emeary’s behalf. (In fact, he went further and represented that there was “no reversible error in this case.” Anders Br., at 24.) He therefore requested the court’s leave to withdraw as Emeary’s attorney. Under Anders, 386 U.S. at 744, 87 S.Ct. 1396, that triggered this court’s obligation to conduct “a full examination of all the proceedings [and] to decide whether the case is wholly frivolous.” On February 12, 2010, we concluded that there were no nonfrivolous issues presented and dismissed the appeal. United States v. Emeary, 365 Fed.Appx. 552, 553 (5th Cir.2010) (unpublished). The court’s mandate issued on March 8, 2010. Both Emeary’s attorney and we made a serious omission, as I will explain. Neither Emeary’s attorney in his Anders brief nor this court in our opinion dismissing Emeary’s appeal referenced United States v. Constante, 544 F.3d 584 (5th Cir.2008), which issued on October 6, 2008 and was thus established circuit precedent at the time of Emeary’s appeal. In Constante, 544 F.3d at 587, this court held that convictions under Texas Penal Code § 30.02(a)(3) do not constitute “violent felony” convictions under the ACCA. Em-eary, of course, was sentenced to fifteen years of imprisonment based on his Texas Penal Code § 302.03(a)(3) conviction’s classification as a “violent felony” conviction. On November 10," }, { "docid": "18990143", "title": "", "text": "whether the case is wholly frivolous). If the court finds a nonfrivolous issue, it will direct counsel to more fully brief the issue. Cf. United States v. Phillips, 390 F.3d 574, 576 (8th Cir.2004) (noting that we denied the Anders motion to withdraw and directed counsel to more fully brief two issues). By his own argument, Davis concedes that his appellate counsel fully briefed the drug-quantity issue. His only complaint concerns the motion to withdraw. The court’s usual remedy when confronted with a nonfrivolous issue in an Anders brief— order counsel to more fully brief the issue — was already accomplished in this case. Accordingly, Davis cannot establish prejudice. III. CONCLUSION We affirm the district court. . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa. . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after examining the record and concluding that an appeal would be wholly without merit, counsel may file a brief informing the court of any point that arguably might support an appeal, and request permission to withdraw). . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . On the other hand, there are numerous cases where counsel raised an issue in an Anders brief, we rejected the issue on the merits, and granted the motion to withdraw. E.g., United States v. Perales, 487 F.3d 588, 589 (8th Cir.2007); United States v. Alatorre, 207 F.3d 1078, 1079 (8th Cir.2000). This procedure may be a technical violation of Anders, but nothing more. Anders, 386 U.S. at 744, 87 S.Ct. 1396. If a court gratuitously reviews an arguably frivolous issue on the merits instead of simply dismissing the case, a defendant is getting more process than he is due, rather than less. And to the extent that this ineffective assistance of counsel issue has morphed into the question of whether Davis's due process rights were denied because the Davis I panel incorrectly applied Anders, we agree with the government that this issue was not contained within the certificate of appeal-ability" }, { "docid": "11778383", "title": "", "text": "PER CURIAM: Francisco Baraga appeals from his sentence of 70 months’ imprisonment, 8 years’ supervised release and a $50 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school in violation of 21 U.S.C. § 846. Martin Estrella appeals from his sentence of 131 months’ imprisonment and a $100 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school, in violation of 21 U.S.C. § 846, and possession of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924. Gold-stein, Weinstein & Fuld (“GWF”), Baraga’s retained counsel, and Howard S. Ripps, Es-trella’s retained counsel, request permission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although Anders motions are typically made by counsel appointed for indigent defendants pursuant to Fed.R.Crim.P. 44 and the Criminal Justice Act, 18 U.S.C. § 3006A, retained counsel may properly file Anders motions. Although we have never commented on this practice, we have granted Anders motions by retained counsel. See, e.g., Grimes v. United States, 607 F.2d 6, 7 (2d Cir.1979). The Supreme Court has declared in the Anders context that retained and appointed counsel share the responsibility not to “consume the time and the energies of the court or the opposing party by advancing frivolous arguments.” McCoy v. Court of Appeals of Wisc. Dist., 486 U.S. 429, 436, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988). GWF and Ripps both claim that the court should grant their requests because the appeals contain no non-frivolous issues. The government has moved for summary affirmance as to both defendants. Because the Anders briefs are inadequate, we deny GWF and Ripps permission to withdraw until the defendants have been notified by the Clerk of their respective counsels’ desires and of the opportunity to have new counsel appointed. The government’s motions for summary affirmance are denied. GWF’s and Ripps’ briefs fail to demonstrate a minimal effort to “search the record with care, and then to explain to an" }, { "docid": "21389884", "title": "", "text": "63-78 months. He therefore asked the district court to reduce his sentence to 63 months. The Government filed a response, arguing Mr. Kurtz was not statutorily eligible for a § 3582(c)(2) reduction. On August 19, 2015, the district court denied Mr. Kurtz’s motion. He filed a timely notice of appeal on September 1, 2015. See Fed. R-App. 4(b)(l)(A)(i). C. Anders Brief We appointed the Féderal Public Defender’s Office for the District of New Mexico to represent Mr. Kurtz on appeal. On November 25, 2015, Mr. Kurtz’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential ap-pealable issues based on the record. The client may then choose to submit arguments- to the court. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citations omitted). Counsel indicated he could detect no “non-frivolous arguments that the district court erred in denying Mr. Kurtz’s Motion.” Aplt. Br. at 1. He therefore sought permission to withdraw. Counsel mailed a copy of his Anders brief to Mr. Kurtz, who filed a two-page response on January 19, 2016. II. DISCUSSION A. Standard of Review “The scope of a district court’s authority in a sentencing modification proceeding under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a § 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir.2013) (quotation, citation, and brackets omitted). When counsel submits an Anders brief,’ our review of the record is de novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir.2007)" }, { "docid": "14537599", "title": "", "text": "POSNER, Circuit Judge. D’Marcus Mason was sentenced to 135 months in prison for a drug offense, having pleaded guilty pursuant to a plea agreement, and he filed a timely notice of appeal. Although he has not yet filed his opening brief, the government has moved to dismiss the appeal, arguing that we lack jurisdiction because Mason waived his appeal rights as part of a plea agreement. (In fact a waiver of appeal rights does not deprive us of our appellate jurisdiction, although it is a ground for dismissing the appeal.) Mason’s counsel has filed a response in which he agrees that the appeal should be dismissed because of the waiver and asks for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes a criminal defendant’s lawyer to withdraw from the representation of his client on appeal if there are no nonfrivolous grounds for an appeal. The novelty that gives rise to this opinion is a motion by counsel in a criminal case to withdraw by filing a response to a motion to dismiss, rather than by filing a formal Anders brief when the opening brief on appeal is due. A waiver of appeal even in a criminal case is normally valid and binding, e.g., United States v. Nave, 302 F.3d 719, 720-21 (7th Cir.2002); United States v. Brown, 328 F.3d 787, 788 (5th Cir.2003); United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003); but it “does not, in every instance, foreclose review.” United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002). The plea agreement containing the waiver may have preserved some issue for appeal. United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000). Or, if the plea agreement turns out to be unenforceable, maybe because the government committed a material breach or the plea was involuntary on the part of the defendant, the waiver falls with the agreement and the appellant can appeal. United States v. Woolley, 123 F.3d 627, 632 (7th Cir.1997); United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir.2002); United" }, { "docid": "3394833", "title": "", "text": "He contended in his motion that, according to the staff at the Federal Detention Center in Houston, the BOP’s SENTRY system (an inmate record-keeping system) shows that he was transferred from BOP custody to ICE custody on October 17, 2005, not on October 28, 2005, as alleged in the warrant petition. He asserted that October 17, 2005, was the date on which his three-year term of supervised release commenced and therefore that his term expired at midnight on October 16, 2008, approximately one week before the revocation warrant issued. Garcia’s counsel ultimately chose not pursue the motion to dismiss. Subsequently, at a hearing before the district court on June 11, 2009, Garcia pleaded “true” to illegal re-entry and to violating the special condition that he not return to the United States illegally. The district court revoked his term of supervised release and sentenced him to an additional 18-month term of imprisonment. He timely appealed. In response to the federal public defender’s filing of briefs in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Garcia filed certain objections (Objections). His Objections again asserted that the district court lacked jurisdiction to revoke his term of supervised release. In support of his Objections he attached an email addressed to federal public defender Michael L. Herman, his trial counsel, from Beth Hull, a paralegal specialist employed by the BOP. The email dated March 26, 2009, reads in relevant part: SENTRY shows 10/17/2005 is the date I/M changed to ICE custody and he was INS removed 10/28/2005. This court subsequently issued an April 6, 2010 Order instructing the federal public defender to file a brief on the merits addressing, inter alia, the jurisdictional issue in Case No. 09-40635 which we now consider. II. DISCUSSION “We review the district court’s jurisdiction to revoke a defendant’s supervised release de novo.” United States v. Jackson, 426 F.3d 301, 304 (5th Cir.2005) (citing United States v. Jimenez-Martinez, 179 F.3d 980, 981 (5th Cir.1999)). “A district court has jurisdiction to revoke a defendant’s supervised release during the term of supervised release, or within" } ]

[ { "docid": "16233685", "title": "", "text": "PER' CURIAM. In the course of the administration of the bankrupt estate of Max Manson and Samuel F. Manson, the referee, after hearing proofs, made findings and entered an order that said bankrupts “pay over within 10 days to Harry S. Mesirov, as trustee herein, the sum of $2,467, belonging to their estate in bankruptcy, found to be in their possession or under their control.” On certificate to it, the District Court reconsidered the case, and thereafter entered its opinion and decree as follows: “WUen a trustee seeks to obtain a turn-over order, tbe established practice in this circuit is to be followed. Epstein v. Steinfeld (C. C. A. 3) 210 Fed. 236, 127 C. C. A. 54. The present proceeding is in its first stage, and I shall only say that an attentive examination of the record discloses no reason for disagreement with the referee’s report. But the concluding words of his order should be slightly modified, so as to read, ‘found at the time the petition in bankruptcy was filed to be in their possession or under their control.’ And, as the time for payment fixed by the referee has now expired, the date of August 15 is now substituted. “Thus modified, the order is affirmed.” Thereupon this appeal was taken by the bankrupts to this court. No principles or questions of law, or procedure, are involved. The simple issue is one of fact, and those facts are fully discussed in the opinion of the referee. The contention, in substance, now is that the referee erred in his finding of facts, and the District Court erred in adopting those findings. We have carefully examined the testimony, and find the case had the careful and considerate attention of the referee, and we see no reason to differ from the conclusions he reached. As the referee’s conclusions were concurred in by the District Court, we have a case where their joint judgment should not be disturbed unless for plain error. The order below is affirmed, and the case remanded for further procedure by the court below." } ]

[ { "docid": "22226121", "title": "", "text": "these wit nesses, the creditor and the bankrupt, were seen and heard by the referee, and he has credited their evidence and allowed this debt. No arbitrary rule can be laid down for determining the weight which should be attached to a finding of fact by a bankrupt referee. His position and duties are analogous, however, to those of a special master directed to take evidence and report his conclusions, and the rule applicable to a review of a referee’s finding of fact must be substantially that applicable to a master’s report. Tilghman v. Proctor, 125 U. S. 137, 8 Sup. Ct. 894, 31 L. Ed. 664; Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Emil Kiewert & Co. v. Juneau, 78 Fed. 708, 24 C. C. A. 294; Tug River Co. v. Brigel, 86 Fed. 818, 30 C. C. A. 415. Much in both cases must depend upon the character of the finding. If it be a deduction from established fact, the finding would not carry any great weight, for the judge, having the same facts, may as well draw inferences or deduce a conclusion as the referee. But, if the finding is based upon conflicting evidence involving questions of credibility and the referee has heard the witnesses, much greater weight naturally attaches to his conclusion, and the weight of authority is that the district judge, while scrutinizing with care his conclusions upon a review, should not disturb his finding unless there is most cogent evidence of a mistake and miscarriage of justice. Roveland on Bankruptcy, § 32a; In re Swift (D. C.) 118 Fed. 348; In re Rider (D. C.) 96 Fed. 811; In re Waxelbaum (D. C.) 101 Fed. 228; In re Stout (D. C.) 109 Fed. 794; In re Miner (D. C.) 117 Fed. 953. In this case the conclusions of the referee necessarily involved the credibility of the witnesses who testified to the bona fides of the claim preferred by Charles Mack, Sr. The conclusion he reached in favor of the validity of his debt has also passed" }, { "docid": "16241848", "title": "", "text": "184, in an opinion by Circuit Judge (afterwards Justice) Durton : “No arbitrary rule can be laid down for determining the weight which should be attached to a finding of fact by a bankrupt referee. His position and duties are analogous, however, to those of a special master directed to take evidence and report his conclusions, and the rule applicable to a review of a referee’s finding of fact must be substantially that applicable to a master’s report. Tilghman v. Proctor, 125 U. S. 137, 8 Sup. Ct. 894, 31 L. Ed. 664; Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Emil Kiewert & Co. v. Juneau, 78 Fed. 708, 24 C. C. A. 294; Tug River Co. v. Brigel, 86 Fed. 818, 30 C. C. A. 415. Much in both, cases must depend upon the character of the finding. If it be a deduction from established fact, the finding would not carry any great weight, for the judge, having the same facts, may as well draw inferences or deduce a conclusion as the referee. But, if the finding is based upon conflicting evidence involving questions of credibility and the referee has heard the witnesses, much greater weight naturally attaches to his conclusion, and the weight of authority is that the district judge, while scrutinizing with care his conclusions upon a review, should not disturb his finding unless there is most cogent evidence of a mistake and miscarriage of justice. Loveland on Bankruptcy, § 32a; In re Swift (D. C.) 118 Fed. 348; In re Rider (D. C.) 96 Fed. 811; In re Waxelbaum (D. C.) 101 Fed. 228; In re Stout (D. C.) 109 Fed. 794; In re Miner (D. C.) 117 Fed. 953.” In the case at bar the question for determination is mainly, if not entirely, one of deduction from established facts. It does not turn chiefly upon questions of credibility arising in conflicting evidence. Moreover, the referee’s conclusion in his second report that in this case “there was from start to finish no actual intent to conceal his [the" }, { "docid": "14795597", "title": "", "text": "referee, and approved by the court on a petition for review. Ohio Valley Bank Co. v. Mack, 163 F. 155, 158, 89 C. C. A. 605, 24 L. R. A. (N. S.) 184; Baker v. Bishop-Babcock-Becker Co., 220 F. 657, 136 C. C. A. 265. In Ohio Valley Bank Co. v. Mack, Circuit Judge Lurton, later a Justice of the Supreme Court, speaking for the court, said; “If the finding is based upon conflicting evidence involving questions of credibility and the referee has heard the witnesses, much greater weight naturally attaches to his conclusion, and the weight of authority is that the District Judge, while scrutinizing with care his conclusions upon a review, should not disturb his finding unless there is most cogent evidence of a mistake and miscarriage of justice. * * * The conclusion he reached in favor of the validity of his debt has also passed the scrutiny of the District Judge. Under such circumstances this court is not warranted in overturning the conclusions of two courts upon anything less than a demonstration of plain mistake.” But it is claimed that this rule does not apply to the instant case, as the hearing before the referee was on depositions entirely, and he had no better opportunity to determine the credibility of the witnesses than this court has. - Prior to the promulgation of the present equity rules, the evidence in equity cases was entirely on depositions, yet the same rule of law was followed by the Supreme Court and all other national appellate courts. In Newell v. Norton, 70 U. S. (3 Wall.) 257, 267 (18 L. Ed. 271), which was an admiralty case, in which the entire evidence was on depositions, it was held: “It is enough to say that we find ample testimony to support the decision, if believed; and that we again repeat, what we have often before decided, that in such cases parties should not appeal to this court with any expectation that we will reverse the decision of the courts below, because counsel can find in the mass of conflicting testimony enough" }, { "docid": "14795596", "title": "", "text": "TRIEBER, District Judge (after stating the facts as above). In the argument of counsel for the appellant, the principal ground relied on for a reversal is that the finding by the referee, approved by the learned District Judge, is not warranted by the evidence; that the evidence requires a finding that the lease of the Granite City plant was simulated and the rental paid thereunder a return of the purchase price. At the outset we are confronted with the well-settled rule that, in a proceeding in equity — and this must be treated as such— the findings of the- chancellor on disputed evidence have not the conclusive effect as the findings of a jury, or of the trial judge when a jury has been waived, in an action at law; but, unless it is clearly against the weight of the evidence or based on a mistaken'view of the law, it will not be disturbed by an 'appellate court, especially if the finding has been made by a master, or in a bankruptcy proceeding by the referee, and approved by the court on a petition for review. Ohio Valley Bank Co. v. Mack, 163 F. 155, 158, 89 C. C. A. 605, 24 L. R. A. (N. S.) 184; Baker v. Bishop-Babcock-Becker Co., 220 F. 657, 136 C. C. A. 265. In Ohio Valley Bank Co. v. Mack, Circuit Judge Lurton, later a Justice of the Supreme Court, speaking for the court, said; “If the finding is based upon conflicting evidence involving questions of credibility and the referee has heard the witnesses, much greater weight naturally attaches to his conclusion, and the weight of authority is that the District Judge, while scrutinizing with care his conclusions upon a review, should not disturb his finding unless there is most cogent evidence of a mistake and miscarriage of justice. * * * The conclusion he reached in favor of the validity of his debt has also passed the scrutiny of the District Judge. Under such circumstances this court is not warranted in overturning the conclusions of two courts upon anything less than a" }, { "docid": "9732948", "title": "", "text": "America, 2 Cir., 1945, 148 F.2d 416 at page 433 as follows: «* * * it is idie to try to define the meaning of the phrase, ‘clearly erroneous’; all that can be profitably said is that an appellate court, though it will hesitate less to reverse the finding of a judge than that of an administrative tribunal or of a jury, will nevertheless reverse it most reluctantly and only when well persuaded. This is true to a considerable degree even when the judge has not seen the witnesses. His duty is to sift the evidence, to put it into logical sequence and to make the proper inferences from it * * In the case at bar the Referee has seen and heard the witnesses and has determined their credibility and his findings have been affirmed by the District Court. We are not convinced that they are “clearly erroneous”. In Epstein v. Steinfeld, 3 Cir., 1914, 210 F. 236, at page 237 this Court said: “The findings of the referee were made by him after he had taken a large amount of conflicting testimony covering every phase of the alleged withholding of property by the bankrupt, and when he had the opportunity to and did see the witnesses who testified. His findings, as has been decided over and over again, ought not to be disturbed except where it is demonstrated that a plain mistake has been made. * * * “ * * * It is the rule which has obtained in this circuit, and we again affirm it in order that it may be regarded as settled beyond controversy. The learned judge of the District Court had all the evidence and the findings of the referee before him and he has approved them. We have thus the conclusions of two courts, anid they ought not to be distu-rbed except for a plain mistake which would result in the defeat of justice.\" (emphasis supplied.) See also Lodi Trust Co. v. Cohn, 3 Cir., 1939, 108 F.2d 26. In that case we held that in a review-proceeding the burden is upon" }, { "docid": "11466372", "title": "", "text": "or control at the date of bankruptcy which he had not delivered to his trustee. Being fundamental, that issue must be raised and decided first. When on a finding of that fact the referee enters a turnover order and the order is either not reviewed or, if reviewed, is affirmed by the District Court, the fact of possession or control of property and its retention and concealment by the bankrupt becomes settled beyond future controversy. In re Epstein (D. C.) 206 F. 568; Epstein v. Steinfeld (C. C. A.) 210 F. 236; In re Stern (D. C.) 215 F. 979; Schmid v. Rosenthal (C. C. A.) 230 F. 818. When that issue has thus become finally determined and the bankrupt has failed to comply with the order by turning over to the trustee the property so adjudged to be possessed and concealed by him, the next step is a proceeding for contempt. In the contempt proceeding the question of the bankrupt’s possession or control and concealment of property, having already been determined, is not in issue. The sole question is whether the bankrupt is presently able to comply with the turnover order previously made and, accordingly, whether he is disobeying that order. Frederick v. Silverman (C. C. A.) 250 F. 75; Davidson v. Wilson (C. C. A.) 286 F. 108. It therefore devolves upon the bankrupt in the latter proceeding to show how and when the property previously adjudged in his possession or control had passed out of his possession or control, Dittmar v. Michelson (C. C. A.) 281 F. 116, and thereby created a situation, not of disobedience, but of inability to obey the order. He makes a sufficient answer in this regard if he can show by adequate evidence that, wholly without fault on his part, he is physically unable to obey the order. That is, the evidence must satisfy the judge that he is really unable to obey and is not openly or covertly defying the order. In re Epstein (D. C.) 206 F. 568; Epstein v. Steinfeld (C. C. A.) 210 F. 236. The proceeding then" }, { "docid": "22942664", "title": "", "text": "on the other hand, by reversing the referee, took the position that the referee was obliged to accept their testimony. . The appellant contends for the application of the general rule that in resolving issues of fact depending upon the credibility of witnesses and the weight of the evidence, the determination of the trier of the facts, who had the witnesses before him, must prevail. The appellee contends that her testimony and that of her husband, being un-. disputed and not inherently unreasonable or improbable, was to be accepted by the referee, as the trier of the facts, as true, and that this court will not disturb the findings made by the court below, although contrary to the findings of the referee, unless due to some plain mistake. The determination of a referee in bankruptcy of issues of fact, based upon the evidence of witnesses appearing in person before him, where such determination must rest upon the credibility of the witnesses and the weight of their evidence, should ordinarily be accepted upon review, except in those cases where it is obvious that the referee has made a mistake. In re Slocum (C. C. A. 2) 22 F.(2d) 282, 284, 285; In re Croonborg (C. C. A. 7) 268 F. 352, 353; Bank of Commerce & Savings v. Matthews (C. C. A. 7) 257 F. 292, 294; In re M. & M. Mfg. Co., Inc. (C. C. A. 2) 71 F.(2d) 140, 142; Ohio Valley Bank Co. v. Mack et al. (C. C. A. 6) 163 F. 155, 158, 24 L. R. A. (N. S.) 184; In re Wheeler (C. C. A. 7) 165 F. 188, 189; In re Miller (D. C. Minn.) 39 F.(2d) 919, 921; In re Hatem (D. C. E. D. N. C.) 161 F. 895, 896; In re Swift et al. (D. C. Mass.) 118 F. 348, 349; Remington on Bankruptcy, vol. 8, § 3871, p. 231. A different rule would virtually make a review of the findings of a referee as to issues of fact which depended for their correctness upon the credibility of witnesses who" }, { "docid": "22234861", "title": "", "text": "attaches to his conclusion, and the weight of authority is that the district judge, while scrutinizing with care his .conclusions upon review, should not disturb his findings! unless there is most cogent evidence of a mistake and miscarriage of justice. Doveland on Bankruptcy, § 32a; In re Swift (D. C.) 118 Fed. 348; In re Rider (D. C.) 96 Fed. 811; In re Waxelbaum (D. C.) 101 Fed. 228; In re Stout (D. C.) 109 Fed. 794; In re Miner (D. C.) 117 Fed. 953. In this case the conclusions of the referee necessarily involved the credibilify of the witnesses who testified to the bona tides of the claim preferred by Charles Mack, Sr. The conclusion he reached in favor of the validity of his debt has also passed the scrutiny of the district judge. Under such circumstances, this court is not warranted in overturning the conclusions of two courts upon anything less than a demonstration of plain mistake.” It is the rule which has_obtained in this circuit, and we again affirm it in order that it may be regarded as settled beyond controversy. The learned judge of the District Court had all the evidence and the findings of the referee before him and he has approved them. We have thus the conclusions of two courts, and they ought not to b.e disturbed except for a plain mistake which would result in the defeat' of justice. We have carefully and thoroughly examined the evidence in this case to determine whether or not the findings of the referee .are demonstrated to be clearly erroneous. The evidence which must be considered as the basis of the findings is that of an expert accountant. This accountant had all the books of the bankrupt, which appear to have been regularly kept, and which were stated by the bankrupt under oath to be correct, and he had a statement of assets a'hd liabilities sworn to by the bankrupt on July 5, 1911. His examinátion covered the period from July 5, 1911, to October 11, 1911, the date of the bankrupt’s ad judication. He had also" }, { "docid": "13346275", "title": "", "text": "clearly wrong. He therefore entered a decree sustaining the mortgage. A referee’s findings “have every reasonable presumption in their favor, and should not be set aside or modified, unless it clearly appears that there was error or mistake on his part.” Maxey, J., Southern Pine Company v. Savannah Trust Company, 141 F. 802, 805 (C. C. A. 5). See, too, Ohio Valley Bank Company v. Mack, 163 F. 155, 24 L. R. A. (N. S.) 184 (C. C. A. 6); In re Swift (D. C.) 118 F. 348. Upon a careful examination of the record, we are unable to agree with the District Judge. The critical findings of the referee do not appear to us to be clearly wrong. Without undertaking to analyze the evidence and findings in detail, we think the referee’s conclusion that the omitted assets were of relatively slight value and importance was by no means unreasonable. We do not doubt that the conveyance of the land on which the hotel stood, together with the hotel building, its fixtures and furnishings, was quite sufficient to carry with it the good will of the business. Canadian Club Beverage Company v. Canadian Club Corporation, 268 Mass. 561, 168 N. E. 106. In view of the purpose of the statute, which was carefully considered by this court in Commerce Trust Company v. Chandler, 284 F. 737, we think the word “all” in it is by no means to be overemphasized. As to general assignments for the benefit of creditors, it is well settled that the reservation of unimportant assets does not prevent the conveyance from being an act of bankruptcy (United States v. Hooe, 3 Cranch, 73, 2 L. Ed. 370; Mussey v. Noyes, 26 Vt. 462); and we perceive no reason why a stricter rule should be applied under the statute before us. Where the property conveyed, or mortgaged, is of such important character that the mortgagor could not possibly carry on business without it, and the good will of the mortgagor’s business is included, we think the conveyance or mortgage is within the statute unless the omitted property" }, { "docid": "14273536", "title": "", "text": "conclusion. We see no sufficient reason to depart from the well-settled rule that nothing except a plain mistake will justify an appellate court in disregarding the concurrent findings of two subordinate tribunals upon disputed questions of fact. Epstein v. Steinfeld (C. C. A. 3d) 210 Fed. 236, 127 C. C. A. 54. Some confusion seems to exist in the minds of counsel concerning the effect of the order below, and we may say a few further words to make the situation clear. This is not a proceeding to punish for contempt; the controversy has not yet reached that stage. Nothing has been done thus far except to ascertain what sum of money the bankrupt should have accounted for at the time of the adjudication, and should have turned over to his trustee afterward. The prac tice in this circuit was definitely settled by the decision in Epstein v. Steinfeld, supra (followed in Re Pennell [C. C. A. 3d] 214 Fed. 341, 130 C. C. A. 645), and with a slight modification the referee’s finding will conform to that decision. The finding should have been restricted to the date of bankruptcy, and should therefore be modified by striking out the words “and now has in his possession,” and by substituting therefor the words “at the time the petition in bankruptcy was filed.” The'District Judge will of course fix another date for payment of the money. Thus modified, the order appealed from is affirmed." }, { "docid": "2324324", "title": "", "text": "but we think it may fairly be stated that the consensus is that where a referee and special master’s action is based upon conflicting testimony, and he heard and saw the witnesses, that his findings ought to be accepted, and not disturbed, unless it appears that he has made a plain mistake; and this is particularly true in cases involving the concealment of assets, where the motive and intent of the bankrupt becomes material. In this class of cases much weight is necessarily due to the conclusions of the tribunal which had the opportunity of seeing and observing the manner and deportment of the witnesses whose acts were called in question, or of those who may have been cognizant of the transaction. In re Lafleche (D. C. Vermont) 109 Fed. 307; Ohio Valley Bank v. Mack, 163 Fed. 155, and cases cited, 89 C. C. A. 605, 24 L. R. A. (N. S.) 184; In re Wheeler, 165 Fed. 188, 91 C. C. A. 222 (C. C. A. 7th Circuit); Epstein v. Steinfeld, 210 Fed. 236, 127 C. C. A. 24 (C. C. A. 3d Circuit). In this case we have the findings of fact by the referee and special master, and have carefully and critically examined the testimony; and our conclusion is that he was correct in his finding, and that the evidence is entirely insufficient to justify a refusal of the discharge. The objection thereto related especially to the alleged failure to list 'certain bedroom furniture used by the bankrupt and his clerk in a room over the store in which he did business, and while it is averred that his misconduct in this regard was fraudulent, and with intent to conceal property from his creditors, we do not think the testimony taken as a whole, or any reasonable inference that can be drawn therefrom, justifies that conclusion. On the contrary, the circumstances, support a different conclusion; that is, that the small amount of household effects, that cost only some $50 or $60 and sold for $15, was not purposely and with fraudulent intent left out of the" }, { "docid": "15278145", "title": "", "text": "condition. (6) The chattel mortgage covered all the property the bankrupt owned, except the stock of merchandise. Whether the demand of appellant constituted a just claim against the bankrupt estate involved the consideration of the testimony, not without conflict, and the credibility of the witnesses, in view of the relationship existing between the bankrupt and appellant, their interest in the ease, and the more or less improbable accounts that were given concerning the loan, and the \"manner and circumstances under which it was said to have been made. It, was peculiarly a ease in which the opportunity to see and hear the witnesses was of importance in determining their credibility. The evidence was heard by both the referee in bankruptcy and the \"District Court, and in each instance the ruling was adverse to the claim. The finding made ought not to he disturbed unless it can be clearly ascertained that some error of law or mistake of fact had led to an erroneous conclusion. Page v. Rogers, Trustee, 211 U. S. 575, 29 S. Ct. 159, 53 L. Ed. 332; First National Bank v. Abbott (C. C. A. 8) 165 F. 852: Doyle Dry Goods Co. v. Lewis (C. C. A. 8) 5 F.(2d) 918; Houchin Sales Co. v. Angert (C. C. A. 8) 11 F.(2d) 165; In re Trimble (C. C. A. 8) 55 F.(2d) 165; Manson v. Mesirov (C. C. A.) 254 F. 799, certiorari denied 249 U. S. 615, 39 S. Ct. 389, 63 L. Ed. 803; Schmid v. Rosenthal (C. C. A.) 230 F. 818; Ohio Valley Bank Co. v. Mack et al. (C. C. A.) 163 F. 155, 24 L. R. A. (N. S.) 184. No error of law or fact is urged, aside from the conclusion reached. It is contended that the evidence, without contradiction, showed that the loan was made, and, consequently, the claim should have been allowed. There was some conflict in the testimony, and many circumstances created doubt of its credibility. The interest and demeanor of the witnesses and their manner of testifying may have been such as to have rendered" }, { "docid": "22685576", "title": "", "text": "15 U. S. C. § 79 (r) (d); Communications Act of 1934, 47 U. S. C. § 409 (d); National Labor Relations Act, 29 U. S. C. § 161 (2); Federal Trade Commission Act, 15 U. S. C. § 49; Administrative Procedure Act of 1946, 5 U. S. C. 1946 ed. § 1005 (c); and Atomic Energy Act of 1946, 42 U. S. C. A. (1947 Supp.) § 1816 (d). 278 U. S. 358, 366, quoting from In re Epstein (cited as Epstein v. Steinfeld), 206 F. 568, 570. 278 U. S. 358, 364. The late Chief Justice said “. . . the following seem to us to lay down more nearly the correct view,” and cited Toplitz v. Walser, 27 F. 2d 196, a contempt case in which it is said (at p. 197) “The sole question is whether the bankrupt is presently able to comply with the turnover order previously made and, accordingly, whether he is disobeying that order . . . Epstein v: Steinfeld, 210 F. 236, a turnover proceeding, in which the Court delineates both turnover and contempt procedures and states that a contempt order should not be issued unless there is present ability to comply; Schmid v. Rosenthal, 230 F. 818, a turnover case, citing Epstein v. Steinfeld, supra; Frederick v. Silverman, 250 F. 75, a contempt case, reciting the necessity for present ability to comply; Reardon v. Pensoneau, 18 F. 2d 244, a contempt case, holding the evidence there insufficient to establish present inability to comply; United States ex rel. Paleais v. Moore, 294 F. 852, involving a commitment for contempt, stating “. . . the court should be satisfied of the present ability of the bankrupt to comply ....”; In re Frankel, 184 F. 539, a contempt case in which the evidence was held insufficient to show present inability to comply; Drakeford v. Adams, 98 Ga. 722, 25 S. E. 833, a State contempt case requiring present ability to comply to be “clearly and satisfactorily established”; and Collier, Bankruptcy (Gilbert’s ed., 1927) 652. The cumulative effect of these authorities seems clearly to be" }, { "docid": "14273535", "title": "", "text": "McPHERSON, Circuit Judge. On May 22, 1915, S. A. Schmid was adjudged an involuntary bankrupt, after carrying on business for about a year in the city of Wilkes-Barre. In July, the trustee filed a petition with the referee, averring that the bankrupt was concealing assets in the sum of $10,000, and asking for an order requiring the money to be turned over. Testimony was taken and a hearing had, the result being a finding by the referee that the bankrupt “had and now has in his possession” $5,102.20, and an order to pay over that amount forthwith. Upon a petition to review, the District Judge affirmed the order, directing the bankrupt to pay within 30 days from September 14. The present proceeding asserts the order to be erroneous, and assigns several errors, mainly to the effect that the referee’s finding was not justified by the competent evidence. We agree that the record is not as satisfactory as we might desire, but we shall not discuss the facts, because we are satisfied nevertheless with the referee’s conclusion. We see no sufficient reason to depart from the well-settled rule that nothing except a plain mistake will justify an appellate court in disregarding the concurrent findings of two subordinate tribunals upon disputed questions of fact. Epstein v. Steinfeld (C. C. A. 3d) 210 Fed. 236, 127 C. C. A. 54. Some confusion seems to exist in the minds of counsel concerning the effect of the order below, and we may say a few further words to make the situation clear. This is not a proceeding to punish for contempt; the controversy has not yet reached that stage. Nothing has been done thus far except to ascertain what sum of money the bankrupt should have accounted for at the time of the adjudication, and should have turned over to his trustee afterward. The prac tice in this circuit was definitely settled by the decision in Epstein v. Steinfeld, supra (followed in Re Pennell [C. C. A. 3d] 214 Fed. 341, 130 C. C. A. 645), and with a slight modification the referee’s finding will" }, { "docid": "13346274", "title": "", "text": "by Massachusetts General Laws, chapter 255, § 1; it was valid as between the parties to it without such recording. “The trustee is entitled to contest the validity of the mortgage. Commerce Trust Co. v. Chandler, supra. “The mortgage was given for lawful consideration, and in every way the transaction was entered into by the parties in good faith. “With reluctance I am constrained to find that the mortgage is invalid (1) as to the personal property, because not recorded as required by the laws of the Commonwealth of Massachusetts; (2) as a whole because it was not executed by authority of the stockholders.” No additional facts or testimony were submitted to the District Judge; he dealt with the case on the referee’s report. He held, in effect, that on the report taken as a whole it appeared that the mortgage did not cover all the property of the mortgagor and was therefore not within the terms of the statute; and that the referee’s conclusion to the contrary iyas inconsistent with facts found and was clearly wrong. He therefore entered a decree sustaining the mortgage. A referee’s findings “have every reasonable presumption in their favor, and should not be set aside or modified, unless it clearly appears that there was error or mistake on his part.” Maxey, J., Southern Pine Company v. Savannah Trust Company, 141 F. 802, 805 (C. C. A. 5). See, too, Ohio Valley Bank Company v. Mack, 163 F. 155, 24 L. R. A. (N. S.) 184 (C. C. A. 6); In re Swift (D. C.) 118 F. 348. Upon a careful examination of the record, we are unable to agree with the District Judge. The critical findings of the referee do not appear to us to be clearly wrong. Without undertaking to analyze the evidence and findings in detail, we think the referee’s conclusion that the omitted assets were of relatively slight value and importance was by no means unreasonable. We do not doubt that the conveyance of the land on which the hotel stood, together with the hotel building, its fixtures and furnishings, was" }, { "docid": "9530635", "title": "", "text": "nature and'therefore the criminal punishment imposed was lawful — if the facts justify the sentence. The remaining objection is that the facts do not justify the conclusions of the referee and the district judge. On this objection the witness has argued the case in this court as though it were his right to have it heard de novo. In this he was wrong. In cases of contempt some appellate courts have held that findings of fact by the trial court have the force and effect of findings’ of fact by a jury. Bessette v. W. B. Conkey Co., 194 U. S. 324, 338, 24 Sup. Ct. 665, 671, 48 L. Ed. 997; Binkley v. United States (C. C. A.) 282 Fed. 244, 246. The facts here were heard and tried by the referee and the district judge. This court has repeatedly held that findings of a referee in bankruptcy proceed ings, based on conflicting evidence, and affirmed by the district judge, will not be disturbed on ^appeal unless it is demonstrated that a plain mistake has been made. Epstein v. Steinfeld, 210 Fed. 236, 127 C. C. A. 54; In re Kaplan Bros., 213 Fed. 753, 757, 130 C. C. A. 267; In re Thompson (C. C. A.) 284 Fed. 65, 67, 68. This is equally true of findings in contempt proceedings arising out of proceedings in bankruptcy. In formulating this rule we yield to the conclusions of two competent and impartial judicial officers, each of whom has enjoyed the opportunity of seeing and hearing the witnesses. In re Schulman, 177 Fed. 191, 192, 193, 101 C. C. A. 361. On review therefore this case is narrowed to the questions (1) whether there is substantial evidence to support the finding of fact, and (2) whether in law the sentence imposed is of a character justified by the finding. After a careful reading of the short record, we are clearly of opinion that the evi- . dence is sufficient' and that the sentence imposed is lawful. The order of the court is affirmed." }, { "docid": "2324323", "title": "", "text": "the report of the said special master be and it hereby is in respect of the first specification of objection, overruled and set aside; that the said first specification of objection of the Bishop-Babcock-Beeker Company, a corporation, a creditor and party in interest herein, be and the same is hereby sustained; that the application for discharge of the said B. F. Baker, a bankrupt, be and the same hereby is denied.” From the action of the District Court this appeal was taken by the bankrupt. But two questions are presented for the consideration of this court upon the record, namely, whether or not the lower court-erred in setting aside the action of the referee and special master in reference to the first specification of objection, and in holding that the evidence sustained the objection to the discharge, and in refusing the same. Just what weight should be given to the finding of a referee or special master upon an application for a discharge, has been the0 subject of some difference of opinion among the courts; but we think it may fairly be stated that the consensus is that where a referee and special master’s action is based upon conflicting testimony, and he heard and saw the witnesses, that his findings ought to be accepted, and not disturbed, unless it appears that he has made a plain mistake; and this is particularly true in cases involving the concealment of assets, where the motive and intent of the bankrupt becomes material. In this class of cases much weight is necessarily due to the conclusions of the tribunal which had the opportunity of seeing and observing the manner and deportment of the witnesses whose acts were called in question, or of those who may have been cognizant of the transaction. In re Lafleche (D. C. Vermont) 109 Fed. 307; Ohio Valley Bank v. Mack, 163 Fed. 155, and cases cited, 89 C. C. A. 605, 24 L. R. A. (N. S.) 184; In re Wheeler, 165 Fed. 188, 91 C. C. A. 222 (C. C. A. 7th Circuit); Epstein v. Steinfeld, 210 Fed." }, { "docid": "21635253", "title": "", "text": "to effect a preference, and made findings of fact that, at the time of taking the mortgage, claimant had reasonable cause to believe that its enforcement would effect a preference, and that it was the purpose and intent of claimant to secure such preference. The matter is before the court on petition to review findings of the referee. It is the law that upon review of the referee’s order only manifest error will justify reversal on -the facts, for the reason that the referee is in better position to judge of the testimony and to give it due weight. In the case of Ohio Valley Bank Co. v. Mack, 163 F. 155, 158, 89 C. C. A. 605, 608, 24 L. R. A. (N. S.) 184, the rule with reference to the weight to be attached to such findings is stated as follows: “No arbitrary rule can be laid down for determining the weight which should be attached to a finding of fact by a bankrupt referee. His position and duties are analogous, however, to those of a special master directed to take evidence and report his conclusions, and the rule applicable to a review of a referee’s finding of fact must be substantially that applicable to a master’s report. * * * Much in both cases must depend upon the character of the finding. If it be a deduction from established fact, the finding would not carry any great weight, for the judge, having the same facts, may as well draw inferences or deduce a conclusion as the referee. But, if the finding is based upon conflicting evidence involving questions of credibility and the referee has heard the witnesses, much greater weight naturally attaches to his conclusion, and the weight of authority is that the district judge, while scrutinizing with care his conclusions upon a review, should not disturb his finding unless there is most cogent evidence of a mistake and miscarriage of justice.” An examination of the testimony leads to the conclusion that there is no sufficient reason to disturb the referee’s findings of fact in this matter." }, { "docid": "22234860", "title": "", "text": "fact by a bankrupt referee. His position and duties are analogous, however, to those of a'special master directed to take evidence and report his conclusions, and the rule applicable to a review of a referee’s findings of fact must be substantially that applicable to a master’s report. Tilghman v. Proctor, 125 U. S. 137, 8 Sup. Ct. 894, 31 L. Ed. 664; Davis v. Schwartz. 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Emil Kiewert & Co. v. Juneau, 78 Fed. 708, 24 C. C. A. 294; Tug River Co. v. Brigel, 86 Fed. 818, 30 C. C. A. 415. Much in both cases must depend upon the character of the finding. If it be a deduction from established fact, the finding would not carry any great weight, for the judge, having the same facts, may as well draw inferences or deduce a conclusion as the referee. But, if the finding is based upon conflicting evidence involving questions of credibility, and the referee has heard the witnesses, much greater weight naturally attaches to his conclusion, and the weight of authority is that the district judge, while scrutinizing with care his .conclusions upon review, should not disturb his findings! unless there is most cogent evidence of a mistake and miscarriage of justice. Doveland on Bankruptcy, § 32a; In re Swift (D. C.) 118 Fed. 348; In re Rider (D. C.) 96 Fed. 811; In re Waxelbaum (D. C.) 101 Fed. 228; In re Stout (D. C.) 109 Fed. 794; In re Miner (D. C.) 117 Fed. 953. In this case the conclusions of the referee necessarily involved the credibilify of the witnesses who testified to the bona tides of the claim preferred by Charles Mack, Sr. The conclusion he reached in favor of the validity of his debt has also passed the scrutiny of the district judge. Under such circumstances, this court is not warranted in overturning the conclusions of two courts upon anything less than a demonstration of plain mistake.” It is the rule which has_obtained in this circuit, and we again affirm it in order" }, { "docid": "11466371", "title": "", "text": "WOOLLEY, Circuit Judge. A referee, finding that the bankrupt had in her possession money which she had failed and refused to deliver to her trustee, entered against her a turnover order which on review the District Court affirmed. She) did nothing. The referee on petition of the trustee then certified the bankrupt to the District Court for contempt and that court, finding that her failure to obey the order was willfully obdurate and contumacious, entered against her a decree for contempt from which she took this appeal. The evidence is of a character that calls for a brief statement of the applicable law. We are, of course, conversant with the two proceedings which not infrequently arise in situations of this kind — one for a turnover order and the other for contempt because of disobedience of such an order — and are aware of thel legal distinction between them, which, briefly repeating what we have many times stated, is that the issue in a turnover proceeding is whether the bankrupt had property within his possession or control at the date of bankruptcy which he had not delivered to his trustee. Being fundamental, that issue must be raised and decided first. When on a finding of that fact the referee enters a turnover order and the order is either not reviewed or, if reviewed, is affirmed by the District Court, the fact of possession or control of property and its retention and concealment by the bankrupt becomes settled beyond future controversy. In re Epstein (D. C.) 206 F. 568; Epstein v. Steinfeld (C. C. A.) 210 F. 236; In re Stern (D. C.) 215 F. 979; Schmid v. Rosenthal (C. C. A.) 230 F. 818. When that issue has thus become finally determined and the bankrupt has failed to comply with the order by turning over to the trustee the property so adjudged to be possessed and concealed by him, the next step is a proceeding for contempt. In the contempt proceeding the question of the bankrupt’s possession or control and concealment of property, having already been determined, is not in" } ]

[ { "docid": "20777032", "title": "", "text": ". See also Highlands Ins. Co. v. American Marine Corp., 607 F.2d 1101, 1104 (5th Cir.1979), cert. denied, 446 U.S. 918, 100 S.Ct 1853, 64 L.Ed.2d 273 (1980); Powell v. American Cas. Co. of Reading, 772 F.Supp. 1188, 1191 (W.D.Okla.1991); Southern Cas. Co. v. Hughes, 33 Ariz. 206, 212, 263 P. 584, 586 (1928); Penn America Ins. Co. v. Miller, 228 Ga.App. 659, 660-61, 492 S.E.2d 571, 572-73 (1997); Carrier v. Allstate Ins. Co., 702 So.2d 367, 371 (La.App.1997); Progressive Mut. Ins. Co. v. Taylor, 35 Mich.App. 633, 642, 193 N.W.2d 54, 58 (1971); Equity Mut. Ins. Co. v. Allstate Ins. Co., 190 Neb. 515, 520-21, 209 N.W.2d 592, 595 (1973); National Union Fire Ins. Co. v. Ambassador Group, Inc., 157 A.D.2d 293, 556 N.Y.S.2d 549, 553 (1990); Gifford v. Western Aviation Ins. Group, 77 Or.App. 645, 650, 713 P.2d 1085, 1087-88 (1986); Butler v. Bankers Mut. Fire Ins. Co., 76 Pa. D. & C. 352 (C.P.1951); Franklin v. St. Paul Fire & Marine Ins. Co., 534 S.W.2d 661, 665 (Tenn.App.1975). . Although not controlling in the case at hand, other cases have held that a failure to file an endorsement or policy as required by a slate statute rendered the unfiled endorsement or policy void where the statute did not provide for that penalty. See Hawkins Chem. v. Westchester Fire Ins., 159 F.3d 348, 352 (8th Cir.1998) (applying a Minnesota statute); Miller v. National Farmers Union Property & Cas. Co., 470 F.2d 700, 704 (8th Cir.1972) (same); Sawyer v. Midland Ins. Co., 383 N.W.2d 691, 697 (Minn.App.1986); Commercial Union Assurance Co. v. Preston, 115 Tex. 351, 355-56, 282 S.W. 563, 565 (1926); Mutual Life Ins. Co. of N.Y. v. Daddy$ Money, Inc., 646 S.W.2d 255, 257 (Tex.App.1982); see also Anderson v. Minnesota Ins. Guar. Assoc., 520 N.W.2d 155 (Minn.1994) (dictum) (citing Miller favorably), rev’d on other grounds, 534 N.W.2d 706 (Minn.1995)." } ]

[ { "docid": "21991584", "title": "", "text": "that is plausible on its face.’ ” In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017) (en banc) (quoting Fed. R. Civ. P. 8(a)(2) and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). To avoid dismissal, “[a] plausible claim must plead ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Iqbal, 556. U.S. at 678, 129 S.Ct. 1937). But a complaint must allege “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Courts “are not bound to accept as true a legal conclusion couched as a factual allegation,” and “[flactual allegations must be enough to raise a right to relief above the speculative level.” Id. (internal quotation omitted). A. Breach of contract claim Torti alleges the district court erred in holding that the SAC failed to state a claim for breach of contract against Hancock. Because our jurisdiction is based on diversity of citizenship, we apply federal procedural rules but Arkansas substantive law. See Ashley Cty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). Our review of the district court’s interpretation of Arkansas law is de novo. Hortica-Florists’ Mut. Ins. v. Pittman Nursery Corp., 729 F.3d 846, 852 (8th Cir. 2013). In Arkansas, “insurance policies are to be interpreted like other contracts.” Agric. Ins. v. Ark. Power & Light Co., 361 S.W.2d 6, 12 (Ark. 1962). “In order to state a cause of action for breach of contract, the complaint need only assert the existence of a valid and enforceable contract between the plaintiff and the defendant, the obligation of defendant thereunder, a violation by the defendant, and damages resulting to plaintiff from the breach.” Farris v. Conger, 2017 Ark. 83, 512 S.W.3d 631, 634 (2017). When interpreting a contract, courts “must, if possible, ascertain and give effect to the intention of the parties.” Harris v." }, { "docid": "13792888", "title": "", "text": "(Minn.1994) (citation omitted) 9Keene). Keene has been broadly interpreted as barring punitive damages in all cases not involving personal injury. Soucek v. Banham, 524 N.W.2d 478, 480 (Minn.Ct.App.1994). However, Soucek, in turn, has been limited by what seems to be a more sensible interpretation of Keene. The latest expression from a Minnesota appellate court limits Keene to products liability actions and permits the award of punitive damages for the deliberate disregard of rights, including for fraud. Molenaar v. United Cattle Co., 553 N.W.2d 424, 428 (Minn.Ct. App.1996). Barnes contends that the arbitrators’ decision should be vacated because they failed properly to apply Minnesota law. This contention is based on Barnes’ reading of Soucek that, under Keene, punitive damages cannot be awarded in any case that does not involve personal injury. In his reply brief, he contends that Molenaar, which was not decided until after the arbitration was completed, represents a change in the law. On this basis, Barnes suggests that the arbitrators should have followed Minnesota law as it existed at the time of the arbitration. On the other hand, Logan contends that Minnesota permitted punitive damages to be recovered for fraud well before Molenaar, citing Jensen v. Peterson, 264 N.W.2d 139, 144 (Minn.1978). Logan is correct, at least in the sense that the Minnesota Supreme Court has continued to approve the award of punitive damages in cases not involving personal injury. See, e.g., Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 277 (Minn.1995) (approving award of punitive damages, in addition to double damages, in age and disability discrimination in employment case). Ordinarily, when we are faced with two conflicting decisions from a state’s intermediate appellate courts, such as Soucek and Molenaar, “this Court must determine what decision the highest court [of the state] would reach if faced with the issue.” Capital Dev. Co. v. Port of Astoria, 109 F.3d 516, 519 (9th Cir.1997) (citation omitted). In this case, however, we need not engage in that analysis because the issue before us is not, precisely, what the Minnesota law of punitive damages is, but whether the arbitrators acted" }, { "docid": "21507832", "title": "", "text": "given the same weight as some other types of legislative history, such as committee reports, because they generally represent only the view of the speaker and not necessarily that of the entire body. However, floor statements by the sponsors of the legislation are given considerably more weight than floor statements by other members, see NLRB v. St. Francis Hosp. of Lynwood, 601 F.2d 404, 415 n. 12 (9th Cir.1979), and they are given even more weight where, as here, other legislators did not offer any contrary views.”); United States v. Nelson, 277 F.3d 164, 186 (2d Cir.2002) (\"In making this inquiry, we rely principally on the reports of the legislative Committees involved in drafting the statute and in steering it through Congress [and] .... eschew reliance on the passing comments of one Member, and casual statements from the floor debates”), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002); Solite Corp. v. U.S. E.P.A., 952 F.2d 473, 493 (D.C.Cir.1991) (\"The statement of an individual senator carries little weight when there is other, more reliable legislative history, such as these committee reports, to the contrary.”); In re Kelly, 841 F.2d 908, 912 n. 3 (9th Cir.1988) (\"[0]fficial committee reports [ ] provide the authoritative expression of legislative intent.”); Mills v. United States, 713 F.2d 1249, 1252 (7th Cir.1983) (“Committee reports represent the most persuasive indicia of Congressional intent with the exception, of course, of the [statute’s] language.”); see also Board of Governors v. Inv. Co., 450 U.S. 46, 74-75, 101 S.Ct. 973, 67 L.Ed.2d 36 (1981) (according special weight to relevant committee chairman's statements on Senate floor); see also Conroy v. Aniskoff, 507 U.S. 511, 521-22, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring) (according special weight to statements by relevant com mittee chairmen when analyzing legislative history). Nevertheless, Senator Grassley’s comments are entitled to considerable weight, because he was the sponsor of the amendment, his comments were joined by several other senators indicating bipartisan support, and there is no more reliable (or, indeed, any other) legislative history, and certainly none to the contrary, concerning the" }, { "docid": "20722011", "title": "", "text": "Auction, Inc., 754 N.W.2d 23, 28 (S.D.2008) (\"[W]e consistently only use the plain language of the statute and never examine the policy or legislative history unless the text is ambiguous.”). Because the text of SDCL 21-3-14 is unambiguous, the court will not consider the legislative history. Plaintiffs also note the individual statements of one legislator to support the conclusion that the statute was not intended to apply retroactively, but this support is equally unavailing. See Benson v. State, 710 N.W.2d 131, 159 n. 15 (S.D.2006) (“We have consistently held that statements of individual legislators are not persuasive to establish the intent of the Legislature for a particular statute.”) (citations omitted). . See Sun Oil Co. v. Wortman, 486 U.S. 717, 726, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988) (stating that the words substance and procedure mean little except to describe a dichoto my, and what the two words mean in each context is determined by the purpose or reason that the dichotomy is drawn); Ferrell v. W. Bend Mut. Ins. Co., 393 F.3d 786, 796 (8th Cir.2005) (noting the two distinct analyses for Erie and conflict-of-law inquiries even though both require a substance and procedure determination). See also Boyd Rosene & Assocs., Inc. v. Kan. Mun. Gas Agency, 174 F.3d 1115, 1121 (10th Cir.1999) (stating that even if attorney’s fees are substantive for Erie purposes \"they are not thereby necessarily substantive under Oklahoma choice-of-law rules.\"). . Under this test, the court views the following contacts: (1) \"the place where the injury occurred”; (2) \"the place where the conduct causing the injury occurred”; (3) \"the domicil, residence, nationality, place of incorporation and place of business of the parties”; and, (4) \"the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145. . Other principles the court must weigh are: (1) \"the needs of the interstate and international systems”; (2) \"the relevant policies of the forum”; (3) \"the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue”; (4) \"the protection of justified" }, { "docid": "19652245", "title": "", "text": "If this language is to be controlling upon us, it must be either (1) an authoritative interpretation of what the 1980 statute meant, or (2) an authoritative expression of what the 1985 Congress intended. It cannot, of course, be the former, since it is the function of‘the courts and not the Legislature, much less a Committee of one House of the Legislature, to say what an enacted statute means. Nor can it reasonably be thought to be the latter — because it is not an explanation of any language that the 1985 Committee drafted, because on its face it accepts the 1980 meaning of the terms as subsisting, and because there is no indication whatever in the text or even the legislative history of the 1985 reenactment that Congress thought it was doing anything insofar as the present issue is concerned except reenacting and making permanent the 1980 legislation. (Quite obviously, reenacting precisely the same language would be a strange way to make a change.) This is not, it should be noted, a situation in which Congress reenacted a statute that had in fact been given a consistent judicial interpretation along the lines that the quoted Committee Report suggested. Such a reenactment, of course, generally includes the settled judicial interpretation. Lorillard v. Pons, 484 U. S. 575, 580-581 (1978). Here, to the contrary, the almost uniform appellate interpretation (12 Circuits out of 13) contradicted the interpretation endorsed in the Committee Report. See supra, at 565-566 (citing cases); see also Foley Constriction Co. v. United States Army Corps of Engineers, 716 F. 2d 1202, 1204 (CA8 1983), cert. denied, 466 U. S. 936 (1984); Broad Avenue Laundry and Tailoring v. United States, 693 F. 2d 1387, 1391 (CA Fed. 1982). Only the District of Columbia Circuit had adopted the position that the Government had to show something “slightly more” than reasonableness. Spencer v. NLRB, 229 U. S. App. D. C. 225, 244, 712 F. 2d 539, 558 (1983), cert. denied, 466 U. S. 936 (1984). We might add that in addition to being out of accord with the vast body of" }, { "docid": "21991585", "title": "", "text": "SAC failed to state a claim for breach of contract against Hancock. Because our jurisdiction is based on diversity of citizenship, we apply federal procedural rules but Arkansas substantive law. See Ashley Cty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). Our review of the district court’s interpretation of Arkansas law is de novo. Hortica-Florists’ Mut. Ins. v. Pittman Nursery Corp., 729 F.3d 846, 852 (8th Cir. 2013). In Arkansas, “insurance policies are to be interpreted like other contracts.” Agric. Ins. v. Ark. Power & Light Co., 361 S.W.2d 6, 12 (Ark. 1962). “In order to state a cause of action for breach of contract, the complaint need only assert the existence of a valid and enforceable contract between the plaintiff and the defendant, the obligation of defendant thereunder, a violation by the defendant, and damages resulting to plaintiff from the breach.” Farris v. Conger, 2017 Ark. 83, 512 S.W.3d 631, 634 (2017). When interpreting a contract, courts “must, if possible, ascertain and give effect to the intention of the parties.” Harris v. Stephens Prod. Co., 310 Ark. 67, 832 S.W.2d 837, 840 (1992). This is done by looking “to the contract as a whole and the circumstances surrounding its execution.” First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816, 820 (1992). Arkansas courts “consider the sense and meaning of the words used by the parties as they-are taken and understood in their plain, ordinary meaning.” Id. at 819 (quoting Farm Bureau Mut. Ins. v. Milburn, 269 Ark. 384, 601 S.W.2d 841, 842 (1980)). .Finally, courts read different clauses of the contract together, construing it “so that all of its parts harmonize, if that is at all possible.” Id. (quoting Cont’l Cas. Co. v. Davidson, 463 S.W.2d 652, 655 (Ark. 1971)). “A construction that neutralizes any provision of a contract should never be adopted, if the contract can be construed to give effect to all provisions.” Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681, 686 (2004). Torti asserts that, in concluding that the loan forms were not part of the insurance" }, { "docid": "9856367", "title": "", "text": "upon subjects or citizens, not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operation so as to embrace matters not specially pointed out, although standing upon a close analogy.’ ” (quoting United States v. Wigglesworth, 28 F.Cas. 595, 596-97 (Story, Circuit Justice, C.C.D.Mass. 1842) (No. 16,690))). Our review of North Dakota tax law “is limited by the doctrine of separation of powers. Taxation of property is a legislative function, not a judicial function, and courts may not substitute their judgment for that of the” legislature. Dakota Nw. Assocs. Ltd. v. Burleigh Cnty. Bd. of Cnty. Comm’rs, 616 N.W.2d 349, 350-51 (N.D.2000) (internal citations omitted). Under North Dakota law, our “primary objective is ‘to ascertain the intent of the Legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning.’ ” City of Fargo v. White, 839 N.W.2d 829, 832 (N.D.2013) (quoting McDowell v. Gillie, 626 N.W.2d 666, 671 (N.D.2001)). We first must “look[] to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute.” Id. “If, however, the statute is ambiguous or if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, a court may resort to extrinsic aids, such as legislative history, to interpret the statute.” State v. Fasteen, 740 N.W.2d 60, 63 (N.D.2007). “When other means of ascertaining the legislature’s intentions have failed,” the North Dakota Supreme Court strictly construes ambiguous tax statutes in favor of the taxpayer. See Amerada Hess Corp. v. State ex rel. Tax Comm’r, 704 N.W.2d 8, 17 (N.D.2005); Great N. Ry. Co., 225 N.W.2d at 78 (“Where legislative intention is doubtful with respect to the meaning of the statutes granting taxing authority, the doubt must be resolved against the government and in favor of the taxpayer.”). As relevant to this appeal, the bankruptcy court determined- “application of the rules of statutory construction ... lead[s] to the conclusion that [N.D. Cent. Code § 53-06.2-11] did" }, { "docid": "6731884", "title": "", "text": "on Education reported favorably only on House Bill 1343, see H.R. Educ. Comm. Rep. (Mass. Apr. 10,1973), which did not include a private remedy, see H.R. 1343 (Mass.1973): Ultimately, the Legislature enacted and codified at Mass. Gen. L. eh. 271, § 50, a fifth bill, which also provided only criminal remedies. See H.R. 6538 (Mass.1973). Although the House’s rejection of House Bill 611 does not constitute a dispositive statement of legislative intent, cf. Irwin v. Town of Ware, 392 Mass. 745, 772-73, 467 N.E.2d 1292 (1984), it undercuts any argument that the Legislature meant for Mass. Gen. L. ch. 271, § 50, to include a private remedy. The fact that BU obtained injunctions against some of the defendants in two prior actions is irrelevant. The state court’s brief orders in those cases do not reveal the basis on which the injunctions were granted. Significantly, the wording of the orders is virtually identical to that of a preliminary injunction issued in a similar case, see Trustees of Boston Univ. v. Champion Research Corp., Equity No. 96114 (Mass.Sup.Ct. Oct. 26, 1972), before Mass. Gen. L. ch. 271, § 50, was even enacted. Thus, Count II is dismissed. Because BU has failed to state a claim under the statute, I need not address defendants’ argument that § 50 is unconstitutional under the First Amendment. D. State Law Claims BU asserts that this Court has diversity jurisdiction over the state law claims under 28 U.S.C. § 1332. Although complete diversity of citizenship exists among the parties, the amount-in-controversy requirement must be satisfied. Generally, in the case of a suit by a single plaintiff against multiple defendants “ ‘asserting claims against each of them which are separate and distinct, the test of jurisdiction is the amount of each claim, and not their aggregate.’ ” Jewell v. Grain Dealers Mut. Ins. Co., 290 F.2d 11, 13 (5th Cir.1961) (quoting Cornell v. Mabe, 206 F.2d 514, 516 (5th Cir.1953)); see also 14B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3704 (3d ed.1998). In other words, the plaintiff must allege" }, { "docid": "1854581", "title": "", "text": "the provision of the DPA, quoted above, at issue in Szehinskyj’s denaturalization trial. Szehinskyj nonetheless quotes from floor speeches in the House of Representatives and argues that because the term “Nazi war criminal” was used “at least 11 times in the floor debate,” Congress’s intent was that only “war criminals” would be covered by the statutory language, and not — the words of the text notwithstanding — all those who assisted in Nazi persecution. Szehinskyj rests his argument squarely upon the House floor speeches, because his interpretation flies directly in the face of the plain language of the statutory text. He urges that the Sixth Circuit’s decision in Petkiewytsch v. INS, 945 F.2d 871 (6th Cir.1991), which used the same floor speeches to reach the result Szehinskyj seeks in this Court, should be taken as judicial validation of this approach. We reject Szehinskyj’s argument for two reasons. First, the statutory language is not ambiguous, and is contrary to Szehinskyj’s interpretation. Second, scrutiny of the full floor debate reveals absolutely no suggestion of the distinction Szehinskyj proposes. Szehinskyj’s selective invocation of fragments of the floor debate is an object lesson in the perils of appealing to this particular kind of legislative history as a guide to statutory meaning. This case is a perfect illustration of the well-known admonition that what individual legislators say a statute will do, and what the language of the statute provides, may be far apart indeed. The law is what Congress enacts, not what its members say on the floor. This axiom has particular force in this case, and we think it appropriate to analyze the floor debate in some detail, because we have not yet had occasion to decide the precise scope of the Holtzman Amendment. IV. Szehinskyj’s contention that the floor debate evidences a congressional intent to cover only “war crimes” in the Holtzman Amendment is simply not borne out by examination of the record. Szehinskyj quotes several statements from Representative Holtzman, the amendment’s sponsor, which he claims show that she did not intend the bill to include the same broad category of persecution as" }, { "docid": "21457721", "title": "", "text": "granting the non-moving party all reasonable inferences. Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir.2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The parties agree that Minnesota law applies in this diversity case, and we therefore apply Minnesota law. See Netherlands Ins. Co. v. Main St. Ingredients, LLC, 745 F.3d 909, 912-13 (8th Cir.2014). In applying Minnesota law, “[w]e must predict how the Supreme Court of Minnesota would rule, and we follow decisions of the intermediate state court when they are the best evidence of Minnesota law.” Id. (quoting Friedberg v. Chubb & Son, Inc., 691 F.3d 948, 951 (8th Cir. 2012)). In order to determine if Continental has a duty to defend, we must interpret the insurance policy and compare its coverage terms to the allegations in St. Croix’s complaint. See Meadowbrook, Inc. v. Tower Ins. Co., Inc., 559 N.W.2d 411, 415 (Minn.1997). We first interpret the insurance policy in accordance with Minnesota law and address S & B and Sletten’s arguments pertaining to the policy’s construction. After determining the scope of the policy’s coverage, we apply its terms to the facts alleged in the underlying complaint. For the reasons discussed below, we conclude that the policy excludes coverage for defamation committed with an intent to injure and that, accordingly, Continental has no duty to defend against St. Croix’s lawsuit because it alleged only that S & B’s and Brettin’s conduct was intended to injure. A. S & B and Sletten argue that’the Continental policy is ambiguous and that this ambiguity requires Continental to defend against the St. Croix lawsuit. See Wanzek Constr., Inc. v. Emp’rs Ins. of Wausau, 679 N.W.2d 322, 329 (Minn.2004) (construing an ambiguous exclusion in favor of the insured); Gen. Cas. Co. of Wis. v. Wozniak Travel, Inc., 762" }, { "docid": "3176003", "title": "", "text": "to have no impact on Maine’s environmental or other interests. By its own terms, the Implementing Act, § 6204, makes state laws regulating land use or management, conservation and environmental protection applicable to tribal lands. The absence of an assertion that any such laws are involved here is telling. Cf. Narragansett, 89 F.3d at 922 (enjoining construction of housing until the tribe complied with the requirements of state coastal resources management program). Under such circumstances, arguments about history, which may be pertinent in other contexts and for addressing other problems, offer little here. We test our conclusions against a different history, the legislative history, because the language of the Implementing and Settlement Acts does not clearly dispose of the question. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984) (“Where, as here, resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear.”); Penobscot Indian Nation v. Key Bank, 112 F.3d 538, 548 (1st Cir.1997) (inquiry into legislative history is “particularly appropriate in the context of federal Indian law”); Massachusetts v. FDIC, 102 F.3d 615, 620 (1st Cir.1996). That legislative history is only somewhat helpful because it embodies two conflicting approaches to resolving the question of what is an internal tribal matter. On the one hand, Congress described the settlement as “original” and “innovative.” On the other hand, the Congress referred to respecting the inherent self-governing authority of a tribe. In so doing, it referred to a Supreme Court opinion, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). We look to the Committee Report of the Senate Select Committee on Indian Affairs concerning the Settlement Act. See Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 483, 83 L.Ed.2d 472 (1984) (Committee Reports on a bill are authoritative source for determining legislative intent). That report explains that the “treatment of the Passama-quoddy Tribe and Penobscot Nation in the Maine Implementing" }, { "docid": "23363830", "title": "", "text": "and to a House committee report prepared in anticipation of the IDEA’S introduction, both of which acknowledge the problem of minority students being misidentified as disabled. Appellants contend that “Congress would have not expressed such concern about the misidentification of African-American children as disabled and then left those same children without any recourse under the IDEA.” (Appellants Br. 19.) Appellants’ reliance on the statutory Findings and House committee report is unavailing. Legislative history has never been permitted to override the plain meaning of a statute. As the Supreme Court has made clear, “Congress’ ‘authoritative statement is the statutory text, not the legislative history.’ ” Chamber of Commerce v. Whiting, — U.S. -, 131 S.Ct. 1968, 1980, 179 L.Ed.2d 1031 (2011) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005)). Legislative history may not be used to alter the plain meaning of a statute. “The law is what Congress enacts, not what its members say on the floor.” Szehinskyj v. Att’y Gen., 432 F.3d 253, 256 (3d Cir.2005). Moreover, “legislative history may be referenced only if the statutory language is written without a plain meaning, i.e., if the statutory language is ambiguous.” Byrd v. Shannon, 715 F.3d 117, 123 (3d Cir.2013). “Legislative history ... is meant to clear up ambiguity, not create it.” Milner v. Dep’t of Navy, — U.S. -, 131 S.Ct. 1259, 1267, 179 L.Ed.2d 268 (2011); see also Velis v. Kardanis, 949 F.2d 78, 81 (3d Cir.1991) (“There is no need to resort to legislative history unless the statutory language is ambiguous.”). We must “not take the opposite tack of allowing ambiguous legislative history to muddy clear statutory language.” Milner, 131 S.Ct. at 1266; see also Nat’l Coal for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283 (4th Cir.1998) (“This plain meaning cannot be circumvented unless we have the rare instance when there is a clearly expressed congressional intent to the contrary or when a literal application of the plain language would frustrate the statute’s purpose or lead to an absurd result.”). Because" }, { "docid": "15864181", "title": "", "text": "awarding front pay in the amount recommended by the jury. C. The Minnesota Human Rights Act Multiplier Following calculation of the awards, the magistrate judge multiplied the entire award by 1.5 to reach the total amount awarded to Mathieu. The magistrate judge justified this action, stating it would serve to entice members of the bar to privately enforce the MHRA. Gopher News asserts the magistrate judge’s application of the MHRA multiplier was error because he did not consider whether application of the multiplier was necessary to fully compensate Mathieu, and in any event, the size of Mathieu’s award was sufficient to entice members of the bar to enforce the MHRA without multiplication. Gopher News also asserts the multiplier should not be applied to awards for front pay or emotional harm. Application of the MHRA multiplier is vested in the trial courts’ discretion. See Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274, 276 (Minn.1995). The argument that application of the multiplier must be tied to compensatory purposes has been rejected by the Minnesota courts. In Phelps, the Minnesota Supreme Court held that “[s]ubdivision 2 contains no guidelines as to when or under what circumstances a trial court may multiply damages.” 537 N.W.2d at 274. The court refused to manufacture its own guidelines, rather stating that “subdivision 2 unambiguously vests trial courts with the discretion to multiply damages.” Id. It went on to hold that, “[Defendant’s] contention that a trial court must tie the multiplication of damages to a finding of uncompensated damages is erroneous, and to the extent that [prior Minnesota cases] support this contention, they too are erroneous.” Id. at 275. Likewise, the magistrate judge’s determination to encourage private enforcement of the MHRA is a valid justification for application of the multiplier. Not only is a trial court’s discretion broad, but the Minnesota Supreme Court also noted in Phelps that “legislative history indicates that one objective the legislature sought to achieve through enactment of subdivision 2 was the enticement of the private bar into bringing claims based on violations of the MHRA.” 537 N.W.2d at 277 (citing" }, { "docid": "7375884", "title": "", "text": "recognize the foreign adoption. As the dissent acknowledges, the only contest here is whether plaintiffs may require the Registrar to put both of their names on an amended birth certificate. But the disturbing theme of the dissent is that the “Full Faith and Credit Clause creates a federal right that is actionable against state actors via 42 U.S.C. § 1983.” That ignores all of the authority to the contrary as the majority opinion shows. Remember that the Supreme Court said in Thompson v. Thompson, that the “Full Faith and Credit clause, in either its constitutional or statutory incarnations, does not give rise to an implied federal cause of action.” The Court supports that statement by citing Minnesota v. Northern Securities and Wright and Miller who wrote that it had long been understood that a judgment in another state does not present federal question jurisdiction simply because the plaintiff alleges that full faith and credit must constitutionally be given to the judgment. As Justice Scalia said, concurring in Baker v. General Motors, the full faith and credit clause only gives general validity, faith and credit to foreign judgments as evidence. The dissent would isolate us from controlling precedent of many years. . Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir.2009). . Thompson v. Thompson, 484 U.S. 174, 182, 108 S.Ct. 513, 518, 98 L.Ed.2d 512 (1988). . Minnesota v. Northern Securities, 194 U.S. 48, 72, 24 S.Ct. 598, 605, 48 L.Ed. 870 (1904). . 13D Wright, Miller & Cooper, Federal Practice and Procedure § 3563. . Baker v. General Motors, 522 U.S. 222, 241, 118 S.Ct. 657, 668, 139 L.Ed.2d 580 (1998). LESLIE H. SOUTHWICK, Circuit Judge, specially concurring: Because of my respect for my colleagues with different views, I open with the observation that we are in untraveled territory. There are divergent understandings being stated by these opinions. The sole purpose of each is to reach the correct destination as charted by the Constitution and the Supreme Court. The charts, though, are not well-marked. It is to be expected that different judges making diligent examinations will discern different courses. In" }, { "docid": "23076950", "title": "", "text": "and unequivocal on their face, we find no need to resort to the legislative history of the Act. Since the State has placed such heavy reliance upon that history, however, we do deem it appropriate to point out that this history is at best inconclusive. It is true, as the State points out, that Representative Rankin, as Chairman of the Committee handling the bill on the floor of the House, expressed his view during the course of discussion of the bill on the floor that the 1941 Act would not apply to insane veterans incompetent to make valid contracts. But such statements, even when they stand alone, have never been regarded as sufficiently compelling to justify deviation from the plain language of a statute.” [Footnotes omitted]. The proper time-tested procedure is first to consult the statute and be guided by its plain meaning, with resort to legislative history only when the statute appears ambiguous. “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning.” United States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). [Footnotes omitted]. See Browder v. United States, 312 U.S. 335, 338, 61 S.Ct. 599, 601, 85 L.Ed. 862 (1941), where the Court stated: “The plain meaning of the words of the act covers this use. No single argument has more weight in statutory interpretation than this.” [Footnote omitted]. In accord, Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 617-18, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944). As Justice Jackson stated in his concurrence in Schwegmann Bros. v. Calvert Corp., 341 U.S. 384, 395-96, 71 S.Ct. 745, 751, 95 L.Ed. 1035 (1951): “Resort to legislative history is only justified where the face of the Act is inescapably ambiguous, and then I think we should not go beyond Committee reports, which presumably are well" }, { "docid": "4304118", "title": "", "text": "541-42 (10th Cir.1995)(applying Kansas law, no regulatory estoppel when policy language clear and unambiguous); Cincinnati Ins. Co. v. Flanders Elec. Motor Service, 40 F.3d 146, 153 (7th Cir.1994) (under Indiana law, court will not look to drafting history of clause when language is unambiguous); Montana Refining Co. v. National Union Fire Ins. Co. of Pittsburgh, 918 F.Supp. 1395, 1402 n. 8 (D.Nev.1996) (regulatory estoppel \"would likely be met with a dim reception in Nevada” because Nevada courts do not look to extrinsic evidence where contract language unambiguous); Independent Petrochemical Corp. v. Aetna Cas. and Sur. Co., 842 F.Supp. 575, 581-83 (D.D.C.1994), aff'd sub nom., Charter Oil Co. v. American Employers' Ins. Co., 69 F.3d 1160 (D.C.Cir.1995) (predicting Missouri law, refusing to analyze history of clause in light of unambiguous language); Lumbermens Mut. Cas. Co. v. Belleville Industries, Inc., 407 Mass. 675, 682, 555 N.E.2d 568, 573 (1990)(because the clause is unambiguous, \"we have no need to consider the drafting history of that clause or any statements made by the insurance company representatives concerning the intention of its drafters”); But see, Joy Technologies, Inc. v. Liberty Mut. Ins. Co., 187 W.Va. 742, 421 S.E.2d 493, 498-500 (1992) (construing pollution exclusion clause in accordance with the representations made by the insurance industry to slate regulators); Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 456 N.W.2d 570, 573-75 (1990) (conclusion that pollution exclusion clause ambiguous supported by regulatory history). . Minnesota had already refused to consider the drafting history of the clause in determining whether \"sudden and accidental” were ambiguous terms. Sylvester Bros. Dev. Co. v. Great Cent. Inc. Co., 480 N.W.2d 368, 377 (Minn.App.), pet. for rev. denied (Minn. Mar. 26, 1992). Therefore, the insureds in Anderson, like Plaintiffs in this case, did not argue that the clause was ambiguous; rather, they sought relief based on the insurance industry’s misleading conduct in procuring approval of the clause. Anderson v. Minnesota Insurance Guaranty Association, 520 N.W.2d 155, 160 (Minn.App. 1994), rev’d, 534 N.W.2d 706 (Minn.1995). . For the reasons set forth in the prior section of this opinion, the court grants summary judgment" }, { "docid": "15414822", "title": "", "text": "important congressional policy against discriminatory employment practices.” Alexander, 415 U.S. at 45, 94 S.Ct. at 1018. As the Court stated, “the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts.” Id. at 57, 94 S.Ct. at 1024. We conclude that Congress has articulated an intent through the text and legislative history of Title VII to preclude waiver of judicial remedies for violation of both federal Title VII rights and parallel state statutory rights, thereby exempting state statutes from the provisions of the Federal Arbitration Act. We emphasize that we reach this holding based upon the legislative history and congressional intent manifested by Congress in passing Title VII. The intent of the state legislature in passing the Minnesota Human Rights Act, Minn.Stat. §§ 363.01-363.14 (1986 & Supp.1987), is not relevant to our holding. Cf. Steck v. Smith Barney, Harris Upham & Co., 661 F.Supp. 543 (D.N.J. 1987). Swenson’s claims arising out of opening of Swenson’s mail are arbitrable Swenson appeals from the district court’s stay of Counts VI and VII of her complaint pursuant to the FAA. These counts are based upon alleged acts by the defendants which took place after Swenson had terminated her employment. Swenson argues that the parties’ employment agree ment had ended and that an arbitrator could decide only issues which arose during the time the employment agreement was in effect. The duty to arbitrate is contractual. Only those issues which parties have agreed to arbitrate may be submitted to arbitration. Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1165 (8th Cir.1984) (Arbitration is a matter of contract interpretation). This court must first look to the language of the agreement to determine whether the parties intended this dispute to be arbitrated. Id. If the contract language is ambiguous or unclear, federal policy requires that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Id. (citing Moses H. Cone" }, { "docid": "13792889", "title": "", "text": "arbitration. On the other hand, Logan contends that Minnesota permitted punitive damages to be recovered for fraud well before Molenaar, citing Jensen v. Peterson, 264 N.W.2d 139, 144 (Minn.1978). Logan is correct, at least in the sense that the Minnesota Supreme Court has continued to approve the award of punitive damages in cases not involving personal injury. See, e.g., Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 277 (Minn.1995) (approving award of punitive damages, in addition to double damages, in age and disability discrimination in employment case). Ordinarily, when we are faced with two conflicting decisions from a state’s intermediate appellate courts, such as Soucek and Molenaar, “this Court must determine what decision the highest court [of the state] would reach if faced with the issue.” Capital Dev. Co. v. Port of Astoria, 109 F.3d 516, 519 (9th Cir.1997) (citation omitted). In this case, however, we need not engage in that analysis because the issue before us is not, precisely, what the Minnesota law of punitive damages is, but whether the arbitrators acted in manifest disregard of Minnesota law in awarding punitive damages. In Molenaar, the Minnesota Court of Appeals, citing Jensen and Phelps, concluded that punitive damages were properly awardable for the intentional disregard of rights not involving personal injury. Molenaar, 553 N.W.2d at 427-28. If, under the current state of the law, a Minnesota intermediate appellate court can conclude that punitive damages are available even though no personal injury is involved, we cannot conclude that the arbitrators acted in manifest disregard of Minnesota law in awarding punitive damages. Barnes has advanced no reason why it would be a manifest injustice to apply Minne sota law, as expounded by Molenaar, to this appeal. Because Minnesota law permits the award of punitive damages for fraud, the arbitrators’ error in referencing California law in awarding punitive damages was harmless. 2. “Adams” Error Barnes next contends that the award of punitive damages was in manifest disregard of the law, specifically of the requirement of Adams v. Murakami, 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348 (1991), that evidence of" }, { "docid": "23076949", "title": "", "text": "must stand a well-established principle of legislative interpretation on .its head. Although it has been observed, somewhat in jest, that some may have a tendency to “go to the statute” only “when the legislative history is doubtful,” see Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956) (Frankfurter, J.), the recent decision of a panel of this court in United States v. Rivera, 513 F.2d 519 (2d Cir. 1975), relied upon by the majority, went to an even greater extreme. It substituted dubious legislative history for the plain, unambiguous language of the statute. Despite the suggestion by Rivera that the “plain meaning” doctrine of statutory interpretation of Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1971), has become outmoded, it remains very much alive and viable. See, e.g., United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (1961), where Justice Black, speaking for the Court, stated: “Having concluded that the provisions of § 1 are clear and unequivocal on their face, we find no need to resort to the legislative history of the Act. Since the State has placed such heavy reliance upon that history, however, we do deem it appropriate to point out that this history is at best inconclusive. It is true, as the State points out, that Representative Rankin, as Chairman of the Committee handling the bill on the floor of the House, expressed his view during the course of discussion of the bill on the floor that the 1941 Act would not apply to insane veterans incompetent to make valid contracts. But such statements, even when they stand alone, have never been regarded as sufficiently compelling to justify deviation from the plain language of a statute.” [Footnotes omitted]. The proper time-tested procedure is first to consult the statute and be guided by its plain meaning, with resort to legislative history only when the statute appears ambiguous. “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature" }, { "docid": "4088422", "title": "", "text": "a job that another employee is entitled to claim under the seniority system. He asserts that this court should follow this comment in the committee report, deny summary judgment, and leave to the finder of fact at trial the task of balancing his interests against those of other employees to determine whether the accommodation sought is reasonable. That is the approach adopted by the district court in Emrick v. Libbey Owens-Ford Co., 875 F.Supp. 393, 396-97 (E.D.Tex.1995). But see Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995) (holding that ADA did not require accommodation by promoting plaintiffs, and assuming that ADA could not require transfer contrary to seniority system in collective bargaining agreement). Is that comment in the committee report a sufficiently “clear and express indication from Congress” to require seniority systems to give way? This court does not believe the comment in the House committee report can be or should be given controlling weight in determining the effect of a seniority system on a reassignment sought under the ADA. There are two principal reasons. First, of course, the passage is in the legislative history and not in the ADA itself, yet that language would, if given legal effect, substantially impair the rights of other employees recognized by and enforceable under federal law. Such impairment of other federal rights should require explicit statutory language, not merely a comment in a committee report. Second, the brief comment in the committee report tries to say what the law should not be, but does not say what the law should be. Giving binding effect to the comment in the committee report would impose an utterly nebulous legal standard on employers, unions, judges and juries, who would all have to balance the interests of one employee against another with no meaningful guidance from the legislature as to how they should do so. As to the first reason, while legislative history may be used to illuminate obscure or ambiguous statutory language, inserting language in a committee report is no substitute for the constitutional process of enacting laws and presenting them to the President." } ]

[ { "docid": "22307734", "title": "", "text": "and remand. Even if the Bankruptcy Court’s orders are not “final” under the collateral order doctrine, we grant leave to appeal under 28 U.S.C. § 158(a)(3). Leave to hear appeals from interlocutory orders should be granted with discrimination and reserved for cases of exceptional circumstances. Appealable interlocutory orders must involve a controlling question of law as to which there is substantial ground for difference of opinion, and the immediate resolution of the order may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b); Fed.R.Bankr.P. 8018(b); American Freight Sys., Inc. v. Transport Ins. Co. (In re American Freight Sys., Inc.), 194 B.R. 659, 661 (D.Kan. 1996); Intercontinental Enter., Inc. v. Keller (In re Blinder Robinson & Co.), 132 B.R. 769, 764 (D.Colo.1991). The Bankruptcy Court’s orders involve a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal may materially advance the ultimate termination of the litigation. See 9 James W. Moore, Moore’s Federal Practice ¶ 110.22[2], at 271-72 (2d ed. 1996) (“An order refusing to remand an action to the state court presents a controlling question [of law] and it may be certified” for interlocutory appeal). Accordingly, we have jurisdiction to hear this appeal. III. Standard Of Review “For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988); see Fed.R.Bankr.P. 8013; Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1370 (10th Cir.1996). We must decide whether the Bankruptcy Court had jurisdiction over the State Court action and, if so, whether it was correct in refusing to abstain from hearing the action under 28 U.S.C. § 1334(c)(2). Questions involving the jurisdiction of the Bankruptcy Court are subject to de novo review. See, e.g., Jones v. Bank of Santa Fe (In re Courtesy Inns, Ltd., Inc.), 40 F.3d 1084, 1085 (10th Cir.1994); see" } ]

[ { "docid": "18750325", "title": "", "text": "for leave. Bankr.Rule 8003(c). See also In re Allegheny International, Inc., 107 B.R. 518, 522 (W.D.Pa.1989) (stating that “[although no motion for appeal via leave of court has been filed, this Court may grant leave to appeal at its discretion”). Whether to hear an interlocutory appeal is within the court’s discretion. Matter of Pizza of Hawaii, Inc., 761 F.2d 1374, 1378 (9th Cir.1985); In re American Freight System, 153 B.R. 316, 318 (D.Kan.1993). In determining whether to review an appeal from an interlocutory order, some courts have relied by analogy on 28 U.S.C. § 1292(b). Under § 1292(b), an appeal may be taken from an interlocutory order where the order involves (1) a controlling question of law (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation. The issues on appeal all concern the validity of certain challenged liens. The question of the liens’ validity is a controlling question of law as to which there is a substantial ground for difference of opinion. Furthermore, the court’s resolution of this question should materially advance the ultimate efficient termination of this litigation. Indeed, the court’s resolution of this question at this time should promote the efficient and prudent use of both judicial resources and the bankrupt estate during the process involved in negotiating and confirming the Chapter 12 plan. Therefore, the court grants leave in this case and accepts jurisdiction to hear this appeal. Facts At the July 15, 1992, hearing, the bankruptcy court admitted three mortgages over appellant’s objections: appellee’s exhibits 19, 21, and 22. Exhibit 19 is a mortgage in the amount of $100,000. It secured a promissory note originally in the amount of $200,000, but later modified to $160,036.99. Exhibit 21 is a mortgage in the amount of $105,000. It secured a promissory note in the amount of $105,000. Exhibit 22 is a mortgage in the amount of $335,000. It secured promissory notes in the aggregate amount of $335,000. Pursuant to K.S.A. § 79-3102(a), appellee paid a registration fee when it filed the" }, { "docid": "19074916", "title": "", "text": "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, this Court does not have jurisdiction to hear this appeal under 28 U.S.C. § 158(a)(1). The Court may, however, exercise jurisdiction Over an interlocutory order of a bankruptcy court if leave to hear the appeal is granted. 28 U.S.C. § 158(a)(3); see id. at § i58(e); Fed.R.Bankr.P. 8001(b) and 8003. A timely-filed notice of appeal may be considered a motion for leave to appeal if, as in this case, the appellant has not filed such a motion. Fed.R.Bankr.P. 8003(c). Treating the debtors’ notice of appeal as a motion for leave to appeal, we conclude that the motion should be granted. We have stated: Leave to hear appeals from interlocutory orders should be granted with discrimination and reserved for cases of exceptional circumstances. Appealable interlocutory orders must involve a controlling question of law as to which there is substantial ground for difference of opinion, and the immediate resolution of the order may materially advance the ultimate termination of the litigation. Personette v. Kennedy (In re Midgard Corp.), 204 B.R. 764, 769 (10th Cir. BAP 1997) (citing" }, { "docid": "3387220", "title": "", "text": "States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). The parties correctly acknowledge the two orders at issue here are not final decisions, but rather are interlocutory. The Court’s review of interlocutory orders is addressed to the district court’s discretion. In re American Freight System, Inc., 153 B.R. 316 (D.Kan.1993). Applications for leave to appeal are governed by Fed.R.Bankr.P. 8001(b) and 8003(a). If a required motion for leave to appeal is not filed, the district court may treat the timely notice of appeal as a motion for leave to appeal. B. Standard for Granting Interlocutory Appeal As indicated above, whether to hear an interlocutory appeal is within the Court’s discretion. Typically, federal courts are reluctant to hear interlocutory appeals. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Such appeals are permissible only in exceptional or extraordinary circumstances. City Bank and Trust Co. v. Stiles (In re Stiles), 29 B.R. 389 (M.D.Tenn.1982) (citing Cardwell v. Chesapeake and Ohio Railway Co., 504 F.2d 444, 446 (6th Cir.1974)). In deciding whether to review an interlocutory appeal, federal courts typically by analogy have relied on 28 U.S.C. § 1292(b). Pursuant to section 1292(b), an appeal may be taken from an interlocutory order only where the order involves (1) a controlling question of law (2) as to which there is substantial ground for a difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation. In re Kruckenberg, 160 B.R. 663 (D.Kan.1993); In re MCorp. Financial, Inc., 139 B.R. 820, 823 (S.D.Tex.1992); In re Beker Indus. Corp., 89 B.R. 336 (S.D.N.Y.1988). The appellant bears the burden of establishing exceptional circumstances warranting review of an interlocutory order. Applying the above standards to this case, the Court must DENY Bradford’s appeal. The Court does not find a controlling question of law is involved; the Court does not find there are substantial grounds for a difference of opinion; and lastly, the Court does not find the ultimate termination of this case would be advanced. Moreover, the standard of review" }, { "docid": "19074917", "title": "", "text": "this Court does not have jurisdiction to hear this appeal under 28 U.S.C. § 158(a)(1). The Court may, however, exercise jurisdiction Over an interlocutory order of a bankruptcy court if leave to hear the appeal is granted. 28 U.S.C. § 158(a)(3); see id. at § i58(e); Fed.R.Bankr.P. 8001(b) and 8003. A timely-filed notice of appeal may be considered a motion for leave to appeal if, as in this case, the appellant has not filed such a motion. Fed.R.Bankr.P. 8003(c). Treating the debtors’ notice of appeal as a motion for leave to appeal, we conclude that the motion should be granted. We have stated: Leave to hear appeals from interlocutory orders should be granted with discrimination and reserved for cases of exceptional circumstances. Appealable interlocutory orders must involve a controlling question of law as to which there is substantial ground for difference of opinion, and the immediate resolution of the order may materially advance the ultimate termination of the litigation. Personette v. Kennedy (In re Midgard Corp.), 204 B.R. 764, 769 (10th Cir. BAP 1997) (citing 28 U.S.C. § 1292(b); Fed.R.Bankr.P. 8018(b); American Freight Sys., Inc. v. Transport Ins. Co. (In re American Freight Sys., Inc.), 194 B.R. 659, 661 (D.Kan.1996); Intercontinental Enter., Inc. v. Keller (In re Blinder Robinson & Co.), 132 B.R. 759, 764 (D.Colo.1991)). As will be discussed below, the question of law in this case is one as to which there is substantial ground for difference of opinion. Whether the question of law is “controlling” and whether the immediate resolution of the order will materially advance the ultimate termination of the litigation initially was not clear inasmuch as our record showed that the debtors intended to file an amended chapter 13 plan in the bankruptcy court. Accordingly, we ordered the parties to supplement the appellate record by filing a copy of the amended plan and a statement regarding the status of the plan to assist us in determining whether we have jurisdiction over the appeal, including whether the appeal is moot. Based on the supplemented record, we conclude that we should exercise jurisdiction over this appeal. Despite" }, { "docid": "8913071", "title": "", "text": "appeal will be treated as a request for leave to appeal pursuant to Bankruptcy Rule § 8003(c). Strict guidelines for accepting interlocutory appeals from bankruptcy courts are not established by the statute. Section 158(c) mandates that the district court shall follow the rules generally used in determining whether a civil proceeding may be appealed to the court of appeals. Courts have thus looked to and followed interlocutory appeal rulings based upon 28 U.S.C. § 1292(b), the statute concerning interlocutory civil appeals taken to the court of appeals, in determining whether to allow an immediate appeal from the bankruptcy court. See, e.g., In re Kanterman, 99 B.R. 208, 209 (S.D.N.Y.1989); In re American Reserve Corp., 71 B.R. 303 (N.D.Ill.1987); First American Bank v. Southwest Gloves and Safety Equipment, Inc., 64 B.R. 963, 966 (D.Del.1986); In re Hebb, 53 B.R. 1003, 1005 (D.Md.1985). Under § 1292(b), leave to file an interlocutory appeal will only be granted where the order involves a controlling question of law as to which there is substantial ground for a difference of opinion, and where an immediate appeal would materially advance the termination of the litigation. The leading bankruptcy treatise suggests that district courts be more lenient in granting interlocutory appeals of venue decisions than the standard followed under § 1292(b): The discretion of the district court or appellate panel [to permit interlocutory appeals of orders changing venue] should be more readily obtained when an order regarding the venue of a title 11 case is concerned than in an appeal from a venue order in a civil proceeding. Unlike a civil proceeding in which the order regarding venue can be appealed at the conclusion of the proceeding, there is a very small chance of success on an appeal which is taken after the title 11 case has been administered and closed, which may be the only time when an order regarding venue becomes a final order. The appellate panel or district court should recognize this, and be more inclined to grant the interlocutory appeal when a motion regarding venue of the case is involved. 1 Collier, Bankruptcy ¶" }, { "docid": "4750791", "title": "", "text": "because it is within the district court’s discretion to hear an appeal from an interlocutory order. 28 U.S.C. § 158(a). Generally, the party appealing an interlocutory order must file a notice of appeal accompanied by a motion for leave to appeal. Fed.R.Bankr.P. 8001(b). Here, the Union did not file a motion for leave to appeal based on the erroneous assumption that the bankruptcy order in this case is final. Since the court determined that the bankruptcy court did not enter a final order, the Union’s timely notice of appeal may substitute for the requisite motion for leave to appeal. In re Allen, 896 F.2d 416, 417 n. 1 (9th Cir.1990) (per curiam); Fed.R.Bankr.P. 8003(c). Therefore, it is within this court’s discretion to hear the Union’s interlocutory appeal. Although neither the Bankruptcy Code nor the Rules provide any guidance for determining when an interlocutory appeal is appropriate, the standard set forth in 28 U.S.C. § 1292(b), which governs interlocutory appeals from the district court to the court of appeals, is instructive in this matter. In re Lifshultz Fast Freight Corp., 127 B.R. 418, 418 (N.D.Ill.1991); In re Bowers-Siemon Chemicals Co., 123 B.R. 821, 824 (N.D.Ill.1991). The courts have devised a three part test which suggests that review of interlocutory orders should be granted where: 1) the appeal presents a controlling question of law; 2) over which there is substantial basis for difference of opinion; and 3) an immediate appeal may materially advance the outcome of the case. In re Lifshultz Fast Freight Corp., 127 B.R. 418, 419 (N.D.Ill.1991). The first element of the test is met. This appeal presents a controlling question of law, the interpretation of section 1113 of the Bankruptcy Code. The second element of this test is also met. Although the Seventh Circuit has not interpreted section 1113, other courts have interpreted this section and their decisions are conflicting. In In re Murray Industries, Inc., 110 B.R. 585, 588 (Bkrtcy.M.D.Fla.1990), the bankruptcy court determined that section 1113 governs conditions under which the debtor-in-possession might modify or reject a collective bargaining agreement, leaving payment of employment-related pre-petition obligations to" }, { "docid": "17804200", "title": "", "text": "Appellee New Am General argues that the Bankruptcy Court’s order is not a final appealable order and that leave to appeal should be denied. It is clear that, contrary to appellants’ characterization, the order is not “final”. See In re Blinder, Robinson & Co., 135 B.R. 899, 901 (D.Colo. 1992) (denial of motion to dismiss on juris-dietional grounds not final order); In re Cedar Tide Corp., 859 F.2d 1127, 1131 n. 4 (2d Cir.1988) (same) (dicta); Pipkin v. JVM Operating, L.C., 197 B.R. 47, 52 (E.D.Tex. 1996) (preliminary injunction order not final order). However, the discussion does not end there. The Court may treat the notice of appeal as a motion for leave to appeal. B.R. Rule 8003(c). “Leave to appeal an interlocutory order from the bankruptcy court will be granted only where the standard of 28 U.S.C. § 1292(b) is satisfied. Thus, an appeal may lie but the appellant must first demonstrate that the order ‘involves a controlling issue 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.’ ” Brooks Fashion Stores, Inc. v. Wainscott Sportswear, Inc., No. 96 Civ. 0362(HB), 1996 WL 221591 (S.D.N.Y. May 1, 1996) (citation omitted); 28 U.S.C. § 158(a)(3) (district court may grant leave to appeal interlocutory orders). The jurisdictional question at the heart of the appeal of the preliminary injunction, as discussed below, involves a controlling issue of law as to which there is a substantial difference of opinion. Furthermore, as the jurisdictional matter may dispose of the case, an immediate appeal may materially advance the ultimate resolution of the litigation. See Whaley v. U.S., 76 B.R. 95, 98 (N.D.Miss. 1987). Courts in this Circuit and elsewhere have allowed interlocutory appeals of preliminary injunctions in cases where defendants have interposed jurisdictional challenges to the issuing court’s authority. Visual Sciences, Inc. v. Integrated Communications, Inc., 660 F.2d 56, 59 (2d Cir.1981) (non-bankruptcy case); In re Ocana, 151 B.R. 670, 671 (S.D.N.Y.1993) (preliminary injunction staying state court proceedings is appealable under 28 U.S.C. §" }, { "docid": "18750324", "title": "", "text": "with a more traditional approach. Id. The only apparent concession which the Tenth Circuit makes is that “the appropriate ‘judicial unit’ for application of [the] finality requirements in bankruptcy is not the overall ease, but rather the particular adversary proceeding or discrete controversy pursued within the broader framework cast by the petition.” In re Durability, 893 F.2d at 266. Measured by the traditional finality rule, the bankruptcy court’s order denying appellant’s motion to avoid liens is not final because it does not necessarily resolve all the matters between appellant and appellee nor does it terminate the adversary proceeding on the merits. Although the liens’ validity constitutes a discrete dispute within the larger bankruptcy case, the bankruptcy court’s order does not conclusively determine all issues involving these specific liens. Therefore, appellant appeals from an interlocutory order. In order to appeal from an interlocutory order, appellant must first obtain leave from the court. Even though appellant did not file a motion for leave to appeal, the court treats its timely filed notice of appeal as a motion for leave. Bankr.Rule 8003(c). See also In re Allegheny International, Inc., 107 B.R. 518, 522 (W.D.Pa.1989) (stating that “[although no motion for appeal via leave of court has been filed, this Court may grant leave to appeal at its discretion”). Whether to hear an interlocutory appeal is within the court’s discretion. Matter of Pizza of Hawaii, Inc., 761 F.2d 1374, 1378 (9th Cir.1985); In re American Freight System, 153 B.R. 316, 318 (D.Kan.1993). In determining whether to review an appeal from an interlocutory order, some courts have relied by analogy on 28 U.S.C. § 1292(b). Under § 1292(b), an appeal may be taken from an interlocutory order where the order involves (1) a controlling question of law (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation. The issues on appeal all concern the validity of certain challenged liens. The question of the liens’ validity is a controlling question of law as to which there is a substantial ground" }, { "docid": "18898434", "title": "", "text": "Apple, Inc., 829 F.2d 1484, 1487 (9th Cir.1987). In Frontier Properties, the Ninth Circuit summarized the test for determining whether or not a bankruptcy order is appealable. The Ninth Circuit stated a bankruptcy court order is appealable when it: “1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed.” Frontier Properties, Inc., 979 F.2d at 1363 (citing In re Allen, 896 F.2d 416, 418-19 (9th Cir.1990)). Here, the bankruptcy court and the parties specifically reserved the determination of the validity, priority, and extent to which the Creditors are secured and the defenses the Debtor may assert for a later date, as evidenced by the bankruptcy court’s conclusions on record, the bankruptcy court’s order, and the language of the stipulation. The bankruptcy court’s order also does not affect any substantive rights because any party may still file an adversary proceeding to determine these issues. Furthermore, the bankruptcy court’s order does not determine the discrete issue of whether or not the Creditors are entitled to the replacement lien or alternatively an administrative expense because the bankruptcy court’s order is clearly conditioned on a future determination. Therefore, the factors set forth in Frontier Properties, have not been demonstrated. As such, we conclude that the bankruptcy court’s order on appeal is interlocutory. The Panel may, in its discretion, review interlocutory orders. Although no motion for leave to appeal has been filed, we may treat the notice of appeal as a motion for leave to appeal. Fed.R.Bankr.P. 8003(c); In re Stewart, 157 B.R. 893, 895-96 (9th Cir. BAP 1993). Leave to appeal should not be granted unless refusal would result in wasted litigation and expense, the appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion, and an immediate appeal would materially advance the ultimate termination of the litigation. In re Caribbean Tubular Corp., 44 B.R. 283, 285 (Bankr.D.P.R.1984). Here, since ultimately there must be a determination as to the status of the Creditors on the collateral, the Panel cannot conclude that: 1) refusal will result in" }, { "docid": "18515333", "title": "", "text": "requires district court’s leave to appeal interlocutory order, rather than bankruptcy court’s). However, district courts grant interlocutory appeals from bankruptcy judges’ orders only in “exceptional circumstances.” Id.; In re Ionosphere Clubs, Inc., 179 B.R. 24, 28 (S.D.N.Y.1995); Escondido Mission Village v. Best Prods. Co., 137 B.R. 114, 116 (S.D.N.Y.1992). To grant interlocutory appeals in non-exceptional circumstances would “contravene the well-established judicial policy of discouraging interlocutory appeals and avoiding the delay and disruption which results from such piecemeal litigation.” Ionosphere, 179 B.R. at 28; Escondido, 137 B.R. at 116 (citations omitted). Although Appellant failed to file a motion for leave to appeal Judge Gerling’s Order, the Court, pursuant to Bankruptcy Rules 8001(b) and 8003(c), will treat its notice of appeal as a motion for leave to appeal. See, e.g., Ionosphere, 179 B.R. at 28. Title 28 U.S.C. § 1292(b) provides three factors for the Court to consider when determining whether to grant a party leave to appeal a bankruptcy judge’s interlocutory order. Ionosphere, 179 B.R. at 28. Under this standard, the Court grants leave to appeal only if the order (1) involves a controlling question of law (2) over which there is a substantial ground for difference of opinion, and (3) an immediate appeal would materially advance the ultimate termination of the litigation. Id.; Escondido, 137 B.R. at 116. Appellee practically concedes, and the Court agrees, that the first two factors weigh in favor of granting Appellant leave to appeal. With respect to the third factor, Appellee contends that because Judge Gerling’s Order leaves Appellant free to seek the appointment of an additional committee through which to assert and protect all of First Plaza’s rights under the Code, Appellant cannot demonstrate that an interlocutory appeal would advance the termination of this litigation. See Ionosphere, 179 B.R. at 29. Appellee’s point is well-taken, but Appellant’s counter-argument diminishes its force. As Appellant argues, if the UST-appointed Committee is legally invalid without First Plaza’s membership, then postponing the resolution of the key legal issue presented to the Court until after the Committee negotiates a plan of reorganization could generate a substantial waste of the" }, { "docid": "18898435", "title": "", "text": "or alternatively an administrative expense because the bankruptcy court’s order is clearly conditioned on a future determination. Therefore, the factors set forth in Frontier Properties, have not been demonstrated. As such, we conclude that the bankruptcy court’s order on appeal is interlocutory. The Panel may, in its discretion, review interlocutory orders. Although no motion for leave to appeal has been filed, we may treat the notice of appeal as a motion for leave to appeal. Fed.R.Bankr.P. 8003(c); In re Stewart, 157 B.R. 893, 895-96 (9th Cir. BAP 1993). Leave to appeal should not be granted unless refusal would result in wasted litigation and expense, the appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion, and an immediate appeal would materially advance the ultimate termination of the litigation. In re Caribbean Tubular Corp., 44 B.R. 283, 285 (Bankr.D.P.R.1984). Here, since ultimately there must be a determination as to the status of the Creditors on the collateral, the Panel cannot conclude that: 1) refusal will result in wasted litigation and expense; 2) there is a controlling question of law as to which there is a substantial ground for difference of opinion; and 3) an immediate appeal would materially advance the ultimate termination of the litigation. The Committee also argues that the Creditors presented no evidence which establishes the validity, extent, and value of their claimed interest in the Debtor’s film library. Issues that are raised for the first time on appeal will not be considered. In re Wind Powers Systems, Inc., 841 F.2d 288, 290 n. 1 (9th Cir.1988). Here, the bankruptcy court did not have the opportunity to consider this issue, and as such, the Panel will not consider it. CONCLUSION For the reasons previously stated above, the Panel concludes that the Committee’s appeal of the bankruptcy court’s conditional order granting to the Creditors adequate protection by way of a replacement lien under § 361 and an administrative claim under § 507(b) is interlocutory and that leave should not be granted. This appeal is hereby DISMISSED. . Unless otherwise stated, all" }, { "docid": "22419943", "title": "", "text": "is interlocutory in nature, because the order does not finally dispose of the Debtors’ cause of action. Instead, the order creates a specific period of time in which the Debtors have been afforded the opportunity to refile their motion for leave to sue, along with then-proposed complaint, as required by the bankruptcy judge. However, if the Debtors do not act prior to the case being closed, then-requested relief will be denied with prejudice. In order for an interlocutory appeal to be heard, a motion for leave to appeal must be filed pursuant to FedR.Bankr.P. 8001(b) and 8003. In the instant case, the Debtors have not filed a motion for leave to appeal. However, this Panel may treat the notice of appeal, which was timely filed, as a motion for leave to appeal. Fed.R.Bankr.P. 8003(c); Official Comm. of Unsecured Creditors v. Credit Lyonnais Bank Nederland N.V. (In re NSB Film Corp.), 167 B.R. 176, 180 (9th Cir. BAP 1994). This Panel, when treating the notice of appeal as the motion for leave to appeal, must then decide whether to grant or deny the motion for leave to appeal. The Panel must review 28 U.S.C. § 1292(b) to determine if leave should be granted. Lompa v. Price (In re Price), 79 B.R. 888, 889 (9th Cir. BAP 1987), aff'd, 871 F.2d 97 (9th Cir.1989). Granting leave is appropriate if the order involves a controlling question of law where there is substantial ground for difference of opinion and when the appeal is in the interest of judicial economy because an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b); In re Madill, 65 B.R. 729, 731 (D.Mont.1986); McDonald v. Sperna (In re Sperna), 173 B.R. 654, 658 (9th Cir. BAP 1994). The appeal from the bankruptcy court’s order involves a controlling question of law as to whether a debtor must obtain the bankruptcy court’s leave to sue a trustee in either federal or state court and mixed questions of law and fact as to whether the requirement of a proposed complaint is an unduly burdensome requirement which" }, { "docid": "16625299", "title": "", "text": "appeal the contempt order under Bankruptcy Rule 8001(b), Bankruptcy Rule 8003(c) provides in part: If a required motion for leave to appeal is not filed, but a notice of appeal is timely filed, the district court or bankruptcy appellate panel may grant leave to appeal or direct that a motion for leave to appeal be filed. The district court or the bankruptcy appellate panel may also deny leave to appeal but in so doing shall consider the notice of appeal as a motion for leave to appeal. Fed. R. BankRjP. 8003(c). The Advisory Committee Note explains the operation of Bankruptcy Rule 8003(c) and sets forth the options available to the reviewing court: Subdivision (c) provides that if a party mistakenly believes the order appealed from is final and files only a notice of appeal, the appeal is not automatically dismissed. The district court or bankruptcy appellate panel has the options to direct that a motion be filed, to decide exclusively on the papers already filed to grant leave to appeal, or to deny leave to appeal. Cf. 28 U.S.C. § 2103. Fed. R. BanKR.P.8003(c) advisory committee’s'note. Accordingly, the Panel has discretion to review the interlocutory contempt order, and will consider the Debtor’s timely-filed notice of appeal as a motion for leave to appeal. See Back v. LTV Corp. (In re Chateaugay Corp.), 213 B.R. 638 (S.D.N.Y.1997); In re Dino’s, Inc., 183 B.R. 779 (S.D.Ohio 1995). The Bankruptcy Rules do not provide standards for determining when leave to appeal an interlocutory order should be granted. In the absence of such guidance within the Bankruptcy Rules, appellate courts reviewing the decisions of bankruptcy courts have applied the standards found in 28 U.S.C. § 1292(b), which define the courts of appeals’ jurisdiction to review interlocutory orders. Dino’s, 183 B.R. at. 781; Chateaugay, 213 B.R. at 636; Masters, Mates & Pilots Plans v. Lykes Bros. Steamship Co., Inc. (In re Lykes Bros. Steamship Co., Inc.), 200 B.R. 933, 938 (M.D.Fla.1996). Under § 1292(b), an appellant seeking review of an interlocutory order must show: (1) the question involved is one of law; (2) the question" }, { "docid": "19074918", "title": "", "text": "28 U.S.C. § 1292(b); Fed.R.Bankr.P. 8018(b); American Freight Sys., Inc. v. Transport Ins. Co. (In re American Freight Sys., Inc.), 194 B.R. 659, 661 (D.Kan.1996); Intercontinental Enter., Inc. v. Keller (In re Blinder Robinson & Co.), 132 B.R. 759, 764 (D.Colo.1991)). As will be discussed below, the question of law in this case is one as to which there is substantial ground for difference of opinion. Whether the question of law is “controlling” and whether the immediate resolution of the order will materially advance the ultimate termination of the litigation initially was not clear inasmuch as our record showed that the debtors intended to file an amended chapter 13 plan in the bankruptcy court. Accordingly, we ordered the parties to supplement the appellate record by filing a copy of the amended plan and a statement regarding the status of the plan to assist us in determining whether we have jurisdiction over the appeal, including whether the appeal is moot. Based on the supplemented record, we conclude that we should exercise jurisdiction over this appeal. Despite the bankruptcy court’s order denying confirmation of the debtors’ plan because of its treatment of the secured claim of WyHy Federal Credit Union (“Credit Union”), the appellee, the debtors filed an amended plan which does not alter its treatment of that claim. The Credit Union objected to the debtors’ amended plan and, although the debtors have not obtained a stay pending appeal, the supplemental pleadings indicate that the debtors and the Credit Union are waiting for a resolution of this appeal before proceeding in the bankruptcy court. Since the question of law under section 1322(c)(1) remains the same under the amended plan and the parties are looking to this appeal to resolve their dispute, the appeal is not moot, there exists a “controlling” question of law, and resolution of this question of law will materially advance the termination of the litigation. Thus, we have jurisdiction over this appeal under section 158(a)(3). STANDARD OF REVIEW The Bankruptcy Appellate Panel may affirm, modify, or reverse a bankruptcy court’s judgment, order, or decree, or remand with instructions for" }, { "docid": "16625300", "title": "", "text": "appeal. Cf. 28 U.S.C. § 2103. Fed. R. BanKR.P.8003(c) advisory committee’s'note. Accordingly, the Panel has discretion to review the interlocutory contempt order, and will consider the Debtor’s timely-filed notice of appeal as a motion for leave to appeal. See Back v. LTV Corp. (In re Chateaugay Corp.), 213 B.R. 638 (S.D.N.Y.1997); In re Dino’s, Inc., 183 B.R. 779 (S.D.Ohio 1995). The Bankruptcy Rules do not provide standards for determining when leave to appeal an interlocutory order should be granted. In the absence of such guidance within the Bankruptcy Rules, appellate courts reviewing the decisions of bankruptcy courts have applied the standards found in 28 U.S.C. § 1292(b), which define the courts of appeals’ jurisdiction to review interlocutory orders. Dino’s, 183 B.R. at. 781; Chateaugay, 213 B.R. at 636; Masters, Mates & Pilots Plans v. Lykes Bros. Steamship Co., Inc. (In re Lykes Bros. Steamship Co., Inc.), 200 B.R. 933, 938 (M.D.Fla.1996). Under § 1292(b), an appellant seeking review of an interlocutory order must show: (1) the question involved is one of law; (2) the question is controlling; (3) there is substantial ground for difference of opinion respecting the correctness of the [bankruptcy] court’s decision; and (4) an immediate appeal would materially advance the ultimate termination of the litigation. Review under § 1292(b) should be sparingly granted and then only in exceptional cases. Vitols v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir.1993) (internal citations omitted). See also Abel v. Shugrue (In re Ionosphere Clubs, Inc.), 179 B.R. 24, 28 (S.D.N.Y.1995) (“[L]eave to appeal from interlocutory orders should be granted only in ‘exceptional circumstances’ because to do otherwise would ‘contravene the well-established judicial policy of discouraging interlocutory appeals and avoiding the delay and disruption which results from such piecemeal litigation.’ ”). This case does not present the exceptional circumstances in which it would be appropriate to hear the appeal of an interlocutory order. On the contrary, hearing an appeal of the contempt order without being able to address the Debtor’s probable challenge to the appropriateness of any sanction levied, should any sanctions ever be levied in the future against the" }, { "docid": "9973974", "title": "", "text": "extend the time for an appeal only as permitted by Rule 8002(c),” In re Herwit, 970 F.2d 709, 710 (10th Cir.1992) (citations omitted), which is on a showing of excusable neglect when the motion is filed after the original appeal period. Rule 8002(c) does not afford an extension on the agreement of the parties. Since the bankruptcy court improvidently granted the motion for extension of time to file an appeal, Walker’s notice of appeal is untimely and need not be treated as a motion for leave to appeal under Bankruptcy Rule 8003(c). Even if Walker’s notice of appeal had been timely filed, the court would still deny Walker leave to appeal this interlocutory order. The district court is vested with the discretion to hear an interlocutory appeal from the bankruptcy court. In re Jartran, Inc., 886 F.2d 859, 866 (7th Cir.1989). “Interlocutory appeals should be granted sparingly.” In re Bowers-Siemon Chemicals Co., 123 B.R. 821, 825 (N.D.Ill.1991); see Miami Center Liquidating Trust v. Dade County, Fla., 75 B.R. 61 (S.D.Fla.1987) (Review of interlocutory orders “is generally discouraged”). Neither Section 158(a) nor the Bankruptcy Rules specify the standards for granting leave, so the courts have borrowed those from 28 U.S.C. § 1292(b). See, e.g., In re Blinder, Robinson & Co., Inc., 135 B.R. at 901; In re Bowers-Siemon Chemicals Co., 123 B.R. at 824; In re Friedberg, 119 B.R. 433, 434 (S.D.N.Y.1990); In re Blair, No. 89-1268-C, 1989 WL 107756, 1989 U.S.Dist. LEXIS 11072 (D.Kan. Aug. 15, 1989) (and cases cited in each). The district court may entertain an appeal of an interlocutory order which involves (1) a controlling question of law as to which there is substantial ground for difference of opinion; and (2) that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). The court finds substantial authority for the bankruptcy court’s holding that minimum contacts with the forum state are unnecessary. See 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1067.1 at 311 (1987) (“The Supreme Court never has ruled on the issue," }, { "docid": "18514975", "title": "", "text": "find no such ambiguity, and neither does the First Circuit. In re Spillane, 884 F.2d 642, 645 (1st Cir.1989). As the Advisory Committee Notes to Fed.R.Bankr.P. 8003 indicate, \"[t]he motion for leave to appeal is addressed to the district court or the bankruptcy appellate panel, although filed with the clerk of the bankruptcy court.” . Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). This is the standard of finality for ordinary civil cases. . We might also note that both parties agree that \"the allowance appealed from is a final allowance.'' Appellee’s Brief, p. 20. This agreement would not have bound us, however, had we concluded otherwise. . In the alternative that the order appealed from were not a final order, we would nevertheless take the notice of appeal filed by appellants to be a Motion Seeking Leave to Appeal. In re Nitec Paper Corp., 43 B.R. 492 (D.C.N.Y.1984). Pursuant to § 158(a)(3), a district court may, in its discretion, grant leave to appeal from interlocutory orders of the bankruptcy court. The standards guiding the exercise of such discretion are the same as those applied by the Circuit Courts of Appeal in deciding whether to entertain appeals from the interlocutory orders of district courts. See In re Neshaminy Office Building Associates, 81 B.R. 301 (E.D.Pa.1987); but see ICMR, Inc. v. Tri-City Foods, Inc., 100 B.R. 51 (D.Kan.1989). In this case, we would have good reason to grant leave to appeal. 28 U.S.C.A. § 1292(b) (1993). The controversy involves a controlling question of law as to which there is substantial ground for difference of opinion, an immediate resolution of which might well advance the ultimate termination of the dispute over Mr. Ramirez’ fees. . 28 U.S.C.A. § 157(b)(2)(A) (1993). . 11 U.S.C.A. § 327(1993). . 11 U.S.C.A. § 330 (1993 & West Supp.1995). . Section 330(a) provides, in pertinent part, that the bankruptcy court may award: \"(1) After [notice and hearing] ...— (A) reasonable compensation for actual, necessary services rendered by the ... attorney ...; and (B) reimbursement for actual, necessary expenses. (2)" }, { "docid": "10577869", "title": "", "text": "1996) (an order allowing an extension for filing a § 523 complaint was interlocutory). An interlocutory order is one “which does not finally determine a cause of action, but instead decides only an intervening matter.” In re Kashani, 190 B.R. 875, 882 (9th Cir. BAP 1995). To become final, the order must end the litigation or dispose of a complete claim for relief, leaving nothing for the court to do but execute the judgment. Id. Here, the order granting leave to amend the complaint set the dischargeability dispute into motion but did not resolve it. 28 U.S.C. § 158(a) authorizes the Panel to grant leave to appeal an interlocutory order. Travers, 202 B.R. at 626. Furthermore, under Fed.R.Bankr.P. 8003(c), the Panel may deem a notice of appeal a motion for leave to appeal where the latter motion has not been filed. Id. “Granting leave is appropriate if the order involves a controlling question of law where there is substantial ground for difference of opinion and when the appeal is in the interest of judicial economy because an immediate appeal may materially advance the ultimate termination of the litigation.” Kashani 190 B.R. at 882. This appeal concerns a legal issue as to which there is no Ninth Circuit case law precisely on point. Review now may limit the scope of litigation and thus advance its ultimate termination. Therefore, we grant leave to appeal. DISCUSSION Leave to amend pleadings “shall be freely given when justice so requires.” See Fed.R.Bankr.P. 7015/Fed.R.Civ.P. 15(a). The Ninth Circuit applies this rule with “extreme liberality.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir.1997) (citing Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)), cert. denied, — U.S. -, 118 S.Ct. 559, 139 L.Ed.2d 401 (1997). In discharge cases, the opportunity to amend is especially important because of the short time frame under which such a complaint must be filed. In re Gunn, 111 B.R. 291, 293 (9th Cir. BAP 1990). In exercising its discretion, a bankruptcy court “must be guided by the underlying purpose of Rule 15 to facilitate decision on" }, { "docid": "10250700", "title": "", "text": "appeal prepared in accordance with Rule 8003 and with proof of service in accordance with Rule 8008. Fed.R.Bankr.P. 8001(b). Rule 8003(c) provides: If a required motion for leave to appeal is not filed, but a notice of appeal is timely filed, the district court ... may grant leave to appeal or direct that a motion for leave to appeal be filed. The district court ... may also deny leave to appeal but in so doing shall consider the notice of appeal as' a motion for leave to appeal. Fed.R.Bankr.P. 8003(c). In considering whether to hear an interlocutory appeal, a district court should consider the factors listed in 28 U.S.C. § 1292(b), the provision governing appeals from interlocutory district court orders to the courts of appeals. See, e.g., Escondido Mission Village v. Best Prods. Co., Inc., 137 B.R. 114, 116 (S.D.N.Y.1992) (Sweet, J.) (“When determining whether to grant an interlocutory appeal from a decision of the bankruptcy court, this Court generally applies the standard governing interlocutory appeals from the district courts to the courts of appeals.”). 28 U.S.C. § 1292(b) provides: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order_ 28 U.S.C. § 1292(b). Under this standard, leave to appeal from an interlocutory order will be granted only if the order (1) involves a controlling question of law (2) over which there is a substantial ground for difference of opinion and (3) if an immediate appeal would materially advance the ultimate termination of the litigation. Escondido, 137 B.R." }, { "docid": "10250699", "title": "", "text": "raised by the appellants in their appeal from the Approval Order and Ruling. The interlocutory nature of the appeal is apparent; the claims raised — including both the alleged inadequacy of the Disclosure Statement and the alleged basic unconfirma-bility of the Plan — would all have been rendered moot had the Plan not been approved. It is not until the appeal from the Confirmation Order that the Court is presented with an appeal from a final order. C. As the jurisdictional statute indicates, interlocutory orders may be reviewed with leave of the district court. While the appellants have not filed a motion for leave to appeal, the Court has treated their notice of appeal as a motion for leave to appeal pursuant to Bankruptcy Rules 8001(b) and 8003(c). Rule 8001(b) provides: An appeal from an interlocutory judgment, order or decree of a bankruptcy judge as permitted by 28 U.S.C. § 158(a) shall be taken by filing a notice of appeal, as prescribed in subdivision (a) of this rule, accompanied by a motion for leave to appeal prepared in accordance with Rule 8003 and with proof of service in accordance with Rule 8008. Fed.R.Bankr.P. 8001(b). Rule 8003(c) provides: If a required motion for leave to appeal is not filed, but a notice of appeal is timely filed, the district court ... may grant leave to appeal or direct that a motion for leave to appeal be filed. The district court ... may also deny leave to appeal but in so doing shall consider the notice of appeal as' a motion for leave to appeal. Fed.R.Bankr.P. 8003(c). In considering whether to hear an interlocutory appeal, a district court should consider the factors listed in 28 U.S.C. § 1292(b), the provision governing appeals from interlocutory district court orders to the courts of appeals. See, e.g., Escondido Mission Village v. Best Prods. Co., Inc., 137 B.R. 114, 116 (S.D.N.Y.1992) (Sweet, J.) (“When determining whether to grant an interlocutory appeal from a decision of the bankruptcy court, this Court generally applies the standard governing interlocutory appeals from the district courts to the courts of appeals.”)." } ]

[ { "docid": "5447854", "title": "", "text": "passed the Algonquin, the Goulder, and the Empire City in the order named, and the Sonoma met and passed the Algonquin and the Goulder; the passing being in each case port to port and under appropriate passing signals. The collision between the Sonoma and the Empire City occurred shortly after the latter had passed the Ionia. We. have no difficulty in finding that the Sonoma’s fault contributed to the collision. The Empire City, in common with the other vessels involved, blew at proper intervals the prescribed fog signals. The Empire City’s signal of three blasts was heard by the Sonoma, which responded with a one-blast passing signal. This latter signal was not replied to by the Empire City, who afterwards gave two further fog signals, presumably at intervals of about one minute. Meanwhile the Sonoma kept on her course, and without giving alarm signals, in spite of the Empire City’s failure to respond to the passing signal. In failing to slow down to a standstill and blow an alarm the Sonoma violated navigation rule 26 applicable to the Great Takes. The New York, 175 U. S. 187, 201, 20 Sup. Ct. 67, 44 L. Ed. 126; The North Star (C. C. A. 6) 62 Fed. 71, 10 C. C. A. 262; The George W. Roby (C. C. A. 6) 111 Fed. 601, 49 C. C. A. 481; Hawgood Transit Co. v. Mesaba S. S. Co. (C. C. A. 6) 166 Fed. 697, 701, 92 C. C. A. 369. While the Sonoma was perhaps not imperatively bound to stop the instant she heard the Empire City’s first fog signal (The Umbria, 166 U. S. 413, 17 Sup. Ct. 610, 41 L. Ed. 1053), she was plainly in fault for disregarding three successive signals: The Sonoma thus having been at the time of collision in actual violation of a statutory rule designed to prevent collisions, the burden was upon her to show that such violation could not have contributed to the collision. The Pennsylvania, 19 Wall. 125, 126, 22 L. Ed. 148; The Martello, 153 U. S. 64, 74, 14 Sup. Ct." } ]

[ { "docid": "13226601", "title": "", "text": "or understood. According to the testimony of Neihysel, tire river pilot of the Rockefeller, the Falls' City was only 150 to 200 yards away when •he gave the second signal of one blast. Lombard testified, also, that after going to the shore in a motorboat he walked two squares and was about to step on a street: car before he heard any danger signal. Much consideration of the evidence leads to these conclusions The Rockefeller and the Falls City were approaching each other, if not end on, near enough to that relation to require that each should give careful attention to the rales of navigation to prevent collision. The Falls City signaled for a starboard to starboard passing, and without an assent from the Rockefeller proceeded until it was too late to avert a collision. The Rockefeller gave a port to port signal; and pawl no attention to the signal of the Fails City, when, if she had observed, she tumid have known that her signals had not been understood, and that the Falls City and the two tugs were coming on, demanding a starboard to starboard passing. She did not promptly repeat her signal when it was not answered. The navigators of the Rockefeller are subject to criticism for their failure to repeat the signal, and for not attending more closely to the signals and movements of the Falls City. She would be held at fault, and liable, if her negligence in these respects had been the proximate cause of the collision. But we do not think it was. She was almost at rest; the Falls City could plainly see her, and was enjoined by the rules to pass port to port. There was abundant room for the passing, without any movement of the Rockefeller. Under such conditions it was- the obvious duty of the Falls City to pass port to port, even if the Rockefeller had given no signal. Nothing could have justified the attempt of a starboard to starboard passing, except a consenting signal from the Rockefeller. Her navigators are therefore not in a position to charge" }, { "docid": "16204136", "title": "", "text": "Mr. Chief Justice Hughes delivered the opinion of the Court. A collision occurred in the St. Clair river between the vessel “George D. Dixon” owned by the petitioner, Great Lakes Transit Corporation, and the vessel “Willis L. King” owned by the Interstate Steamship Company. Each owner brought a libel in admiralty against the other. The suits were consolidated. The Atlantic Mutual Insurance Company and other underwriters having paid to the petitioner, under insurance policies procured by it, the amount of cargo damage and loss which petitioner had paid to owners of the cargo carried by the “Dixon,” intervened and claimed the right through subrogation to recover the amount thus paid from the Interstate Steamship Company and its vessel, the “King.” The District Court entered a decree adjudging both vessels at fault .and that the intervening underwriters should recover from each of the vessels and their respective owners a moiety of the amounts paid and payable under the policies. The decree was affirmed by the Circuit Court of Appeals. 86 F. (2d) 740. In view of the importance of the issue, certiorari was granted, limited to the question of the correctness of the decree in directing recovery from the petitioner. Petitioner’s contention is that the insurance policies were contracts between the underwriters and the petitioner under which the latter was entitled to be indemnified for the liability it had assumed under its bill of lading and its tariff provisions; that the underwriters were not entitled to recover back from petitioner what they had paid it in discharge of their obligation. The underwriters insist that their policies insured cargo and that their pay ments were made for cargo’s benefit; that, the cargo damage and loss having been paid, they were entitled by subrogation to a decree for the full damage against the “King”; that as both vessels were at fault the “King” was entitled to contribution from the “Dixon,” and that the decree in avoidance of circuity had fixed the ultimate liabilities by requiring each vessel to pay a moiety. The cargo on the “Dixon” was carried under uniform bills of lading," }, { "docid": "7828806", "title": "", "text": "the agreement of the vessel overtaken. The City of Baltimore, 4 Cir., 282 F. 490; The Socony No. 115, D.C., 58 F.2d 392; Northern Nav. Co. v. Minnesota Atlantic Transit Co., 8 Cir., 49 F.2d 203; Dalzell v. United States, D.C., 60 F.2d 1068. The Buena Vista as an overtaking vessel was bound to keep out of the way of the Lennen (Article 24) and took whatever risks attended the attempt to pass except those arising from any fault of the Lennen, herself. The Mesaba, D.C., 111 F. 215, 233; The James W. Follette, D.C., 6 F.Supp. 27. This then brings me to a consideration of the navigation of the Lennen after the Buena Vista became a following vessel. The most intelligent view that I can take of the evidence discloses these facts. Both boats were bound for the open sea and to obtain this objective both were required to use the mine-swept channel. In order to arrive at the mine-swept channel both boats were headed in the general direction of the buoys “C” and “F”; the Lennen travelling in a general northeasterly course and the Buena Vista in a general southeasterly course, the two boats converging toward each other. The Lennen arriving at the buoy first changed her course to the starboard, rounded the buoy and proceeded in a general southeastern course ahead of the Buena Vista but converging somewhat on the course of such vessel. The Buena Vista when some distance astern of the Lennen gave two blasts indicating her desire to pass on the port side which signal was after-wards repeated. After a short interval the Buena Vista gave the danger signal, reversed her engine and turned sharply to the port. In the meantime the Lennen continued to converge, crossed the bow of the Buena Vista and the port bow of the Buena Vista struck the Lennen a few feet to the starboard of the rudder post. The Lennen then passed down the port side of the Buena Vista and subsequently sank. The accident does not seem to have been unavoidable. While the night was dark, yet," }, { "docid": "2159395", "title": "", "text": "the path of the Soya Atlantic and squarely abeam of her course. As this maneuver developed, it was appropriate for the Soya Atlantic to go astern. The need for her reversal of her engines was not so apparent earlier. Her turn to starboard might have been quite sufficient to have avoided the collision if the Darby had turned to starboard, or, turning to port, had used her speed to clear the bows of the Soya Atlantic. We are mindful of the principle that when the fault of one vessel is grave, obvious and inexcusable, fault ought not to be found on the part of another vessel, particularly when it is the privileged vessel, so as to require an apportionment, except upon clear and convincing evidence. After consideration of all of the multiple contentions of the United States as owner of the Darby and of the personal representatives of the two sailors who were killed, we agree that the District Court properly concluded that the sole cause of the collision was the fault of the Darby. Affirmed. . The absence of a lookout having no other duties is not a basis for a finding of fault if the bridge actually observes what a lookout should have seen. Osaka Shosen Kaisha, Ltd. v. Angelos, Leitch & Co., Ltd., 4 Cir., 301 F.2d 59. 61. . McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Tuttle v. American Oil Company, 4 Cir., 292 F.2d 123. . 213 F.Supp. 7. . 33 U.S.C.A. § 203, Art. 18, Rule I. “When steam vessels are approaching each other head and head, that is, end on, or nearly so, it shall be the duty of each to pass on the port side of the other; and either vessel shall give, as a signal of her intention, one short and distinct blast of her whistle, which the other vessel shall answer promptly by a similar blast of her whistle, and thereupon sncli vessels shall pass on the port side of each other.” . 33 C.F.R. 80.3. “ * * * The signals for passing," }, { "docid": "8187561", "title": "", "text": "either vessel fails to understand the course or intention of the other, from any cause, the vessel so in doubt shall immediately signify the same” by giving the danger signal. (Emphasis ours.) See James McWilliams Blue Line v. Card Towing Line, 2 Cir., 168 F.2d 720. In this connection, Maxwell’s testimony, though equivocal, contains significant admissions that he failed to blow the danger signal or stop, even though he had received no whistle signal from the Florence accepting his proposed port to port passing, and in spite of the fact that he either misinterpreted or did not fully understand the course and intention of the Florence. Courts of admiralty have frequently voiced the admonition that there is no right-of-way into a collision, and regardless of any privilege the Gertrude might otherwise have had to maintain her starboard side of the channel had her proposed port to port passing signal been heard and accepted by the Florence, there was a continuing duty on her part to effect a safe passing and avoid a collision. Smith v. Bacon, supra. Under such circumstances, we think it cannot be said with any reasonable degree of assurance that Maxwell’s dereliction in this regard, irrespective of the findings of negligence on the part of the Gertrude in failing to maintain a proper lookout, was not at least a contributing cause of the collision, so as to require a division of the damages. The Pennsylvania, 86 U.S. 125, 136, 22 L.Ed. 148; see Tide Water Associated Oil Co. v. The Syosset, 3 Cir., 203 F.2d 264; City of New York v. American Export Lines, 2 Cir., 131 F.2d 902; The San Simeon, 2 Cir., 63 F.2d 798. The decree is, therefore, Affirmed. . Specifically, the court found: “The ‘Florence’ was not in charge of competent persons. “She failed to keep a proper, attentive, and good lookout. “She failed to keep to her own starboard hand side of the channel. “She failed to make a port-to-port passing which the circumstances presented required. “She suddenly and without warning to the ‘Gertrude’ veered her course and that of her tow" }, { "docid": "8187562", "title": "", "text": "Bacon, supra. Under such circumstances, we think it cannot be said with any reasonable degree of assurance that Maxwell’s dereliction in this regard, irrespective of the findings of negligence on the part of the Gertrude in failing to maintain a proper lookout, was not at least a contributing cause of the collision, so as to require a division of the damages. The Pennsylvania, 86 U.S. 125, 136, 22 L.Ed. 148; see Tide Water Associated Oil Co. v. The Syosset, 3 Cir., 203 F.2d 264; City of New York v. American Export Lines, 2 Cir., 131 F.2d 902; The San Simeon, 2 Cir., 63 F.2d 798. The decree is, therefore, Affirmed. . Specifically, the court found: “The ‘Florence’ was not in charge of competent persons. “She failed to keep a proper, attentive, and good lookout. “She failed to keep to her own starboard hand side of the channel. “She failed to make a port-to-port passing which the circumstances presented required. “She suddenly and without warning to the ‘Gertrude’ veered her course and that of her tow to port and across the course of the ‘Gertrude’ and tow. “She failed to reply and agree to the one-blast signal timely blown by the ‘Gertrude’ for a port-to-port passing. “She failed to blow any passing signal. “She failed to effect a port-to-port passing when such passing was the only proper one under the circumstances presented. “She failed to effect a port-to-port passing when she had not indicated a desire for a starboard-to-starboard passing. “She failed to blow a passing signal to indicate that she was directing her course to port. “She failed to timely and properly maneuver her engines and helm. “She failed to sound a danger signal if those in charge of her did not consider that the port-to-port passing requested by the ‘Gertrude’ was safe and proper. “She failed to sound a danger signal when it appeared to those in charge of her that a safe passing could not bo executed, particularly if she maintained her course as she did. “She failed to slow, stop or stop and reverse her engines reasonably." }, { "docid": "22551957", "title": "", "text": "signal she did hear and succeeded in stopping her headway, and this when the risk of collision first appeared, which was when the Victory last starboarded. The course of the Victory was, we have said, along mid-channel or to the west of it, and did not involve a risk of collision until she made a change to port under a starboard helm, just before sounding the two-blast signal heard by the Plymothian. Her witnesses admit that they were starting straight up the channel after passing Craney Island Light, heading S. -J- ~W. The channel course below Craney Island, as shown by the chart, was S. by E., and in heading S. § W. her helm must have been 'ported, and the vessels were port to port. The testimony of the Plymothian’s officers and crew was to the effect that the Victory was on their port bow all the way up from below Craney Island to the point where she changed her course just before blowing a two-blast signal, and they are corroborated by independent and disinterested witnesses. The Victory’s witnesses testified to starboarding for two or three schooners, who were near the point of collision, and this would account for her sheer to port, as observed on the Plymothian, When she took her precautions for safety. Each of these vessels was entitled to presume that the other would act lawfully; would keep to her own side; if temporarily crowded out of her course, would return to it as soon as possible; and that she would pursue the customary track of vessels in the channel, regulating her action so as to avoid danger. The Servia, 149 U. S. 144; The City of New York, 147 U. S. 72; Belden v. Chase, 150 U. S. 674. The rule applicable to them was that each should keep to her own starboard side of the channel. So long as the vessels were port to port, the Plymothian, proceeding at moderate speed, was not bound to stop and reverse on the chance that the other vessel might depart from the rules of navigation. Nor would" }, { "docid": "13399127", "title": "", "text": "Ed. 84; The Fort St. George (C. C. A.) 27 F.(2d) 788. The Silarus was not at fault for failing to sound a two whistle signal when she, in an emergency, hard astarboarded her helm in an attempt to avoid collision. She did not intend to make a starboard to starboard passage, but simply to throw the stern of the Silarus away from the advancing Almirante Jaceguay, and the sounding of such signal would only have confused matters. If there was any fault, it was an act in extremis and could not have, contributed to the collision. I find as conclusions of law: That the Almirante Jaceguay was guilty of negligence and solely at fault in failing to keep on her right side, the north side of the river, and in allowing herself to sheer over on the south side of the river; in failing to stop her progress until the Silarus running with the current had passed; in failing to carry out the port to port passage to which she had agreed; in failing to reduce her speed; and in allowing her to come into contact with the Silarus and to damage the Silarus and her cargo; and that the Silarus did not, by any action or failure of action on her part or that of her owner, the Royal Mail Steam Packet Company, its agents or servants, contribute to the damages she or her cargo received from the Almirante Jaceguay. The Silarus was without fault and was not guilty of negligence in failing further to reduce her speed or to stop and back, or in failing to sound a two whistle signal. That the Royal Mail Steam Packet Company, owner of the steamship Silarus, libel-ant, on her own behalf and as bailee of the cargo she had on board, is entitled to recover and to have a decree against the Companhia De Navegaeao Lloyd Brasileiro, respondent in the first above-entitled action, for damages, with costs and the usual order of reference. That the Royal Mail Steam Packet Company, cross-respondent, is entitled in the second above-entitled action to a" }, { "docid": "17858603", "title": "", "text": "same moment the Poling Bros, swung back to her starboard until only her red light was visible. The Trippe’s engines were immediately reversed at two-thirds speed and her rudder put hard right in an attempt to pass under the Poling Bros.’ stem, but the effort failed. The bow of the Trippe struck about six feet from the lighter’s stern and caused such damage as necessitated beaching the Poling Bros. Neither vessel had blown any signal. The District Court held the Poling Bros, solely at fault for altering her course without signal. Upon this appeal the libelant makes no attempt to excuse the Poling Bros., but contends only that the Trippe was also at fault, and that damages should be divided. The position is well taken. It is conceded that the course, though not the headings, of the vessels were head and head, or nearly so. In this situation, rule IV of the Inland Buies applies, and makes it the duty of each vessel to pass on the port side of the other. The rule further provides that “either • vessel” shall signal her intention. Had a passing agreement been reached, the collision at bar would have been avoided. When the Trippe stopped her engines to see what the lighter intended to do, it would have been possible to pass on either side. Instead of reaching an agreement by signals, each navigator attempted to divine the intention of the other. This has so often been held a mutual fault that the citation of authorities seems almost superfluous. See The Ice King, 52 F. 894, 896 (D. C. S. D. N. Y.); The Transfer No. 4, 61 F. 364 (C. C. A. 2); The Mercer, 234 F. 259, 262 (C. C. A. 2); A. H. Bull S. S. Co. v. United States, 34 F.(2d) 614, 616 (C. C. A. 2). The appellee argues that rule IV does not apply because the Poling Bros, had swung so far to port that only her green light was visible when the Trippe’s engines were put ahead. But the vessels had begun to navigate with reference" }, { "docid": "8187560", "title": "", "text": "engines, in spite of other testimony and findings that “the ‘Florence’ blew no signals whatever, (and) did not answer in <my way the one blast signal of the ‘Gertrude’.” (Emphasis ours.) While it may be argued that the act of the Florence in thereafter momentarily changing her course to her starboard was a maneuver sufficient to signify her acquiescence, we think the Gertrude may not thus completely exonerate herself from blame in view of Maxwell’s apparently unwarranted and speculative assumption as to the course and intention of the Florence, at variance with the clear mandate of the rule adopted to avoid confusion in such instances, particularly in view of testimony by Mundine aboard the Florence that he was never even aware of the presence of the Gertrude and her tow “until she was right on me.” Rule I of Article 18 of the Inland Rules, 33 U.S.C.A. § 203 provides that, after a port to port passing is requested, “the other vessel shall answer promptly”, and Rule III further provides that “if * * * either vessel fails to understand the course or intention of the other, from any cause, the vessel so in doubt shall immediately signify the same” by giving the danger signal. (Emphasis ours.) See James McWilliams Blue Line v. Card Towing Line, 2 Cir., 168 F.2d 720. In this connection, Maxwell’s testimony, though equivocal, contains significant admissions that he failed to blow the danger signal or stop, even though he had received no whistle signal from the Florence accepting his proposed port to port passing, and in spite of the fact that he either misinterpreted or did not fully understand the course and intention of the Florence. Courts of admiralty have frequently voiced the admonition that there is no right-of-way into a collision, and regardless of any privilege the Gertrude might otherwise have had to maintain her starboard side of the channel had her proposed port to port passing signal been heard and accepted by the Florence, there was a continuing duty on her part to effect a safe passing and avoid a collision. Smith v." }, { "docid": "21494346", "title": "", "text": "Cir., 1927, 20 F.2d 25; The San Simeon, supra. It thus becomes necessary to determine whether the Trim was guilty of a plain fault. The rule above, known as the “major and minor fault” rule, placed the burden upon the Exeter to show that the Trim committed a plain fault. We think this burden was sustained. The trial judge found that the Trim did not give the danger signal until a few seconds before the collision. There was ample evidence to support this finding. Rule III of Article 18 of the Inland Rules provides that “if, when steam vessels are approaching each other either vessel fails to understand the course or intention of the other, from any cause, the vessel so in doubt shall immediately signify the same by giving several short and rapid blasts, not less than four, of the steam whistle.” (Italics supplied.) The evidence is clear that the Trim did not comply with this rule. The captain of the Trim testified that he had remarked upon the erratic course of the Exeter from the moment he saw her and had frequently expressed failure to understand her course or intention. Cf. The Wydale, C.C. La.1889, 37 F. 716, 718. The trial judge found, on disputed testimony, that the Trim signalled for a port to port passing but got no reply, and the captain of the Trim testified that after giving that signal he was still at a loss to know what the Exeter intended to do. Accepting the testimony of those on the Trim as true, this signal was blown when the ships were half a mile apart, but in spite of his uncertainty — which must have been momentarily increasing as the distance between them decreased — and in spite of the statutory rule requiring the immediate blowing of the danger signal, the Trim, by the testimony of those aboard her, blew no such signal until the Exeter was only 200 feet away, a question of seconds before the collision. It is clear that by thus violating Rule III of Article 18, the Trim was guilty of" }, { "docid": "13845690", "title": "", "text": "1,500 feet she signaled for a port to port passage, altering her course to starboard. The Primrose and her tow appeared to be about in the center of the.channel and continued on without answering the signal and without hauling off to their right. Nevertheless the ■ Clevelander proceeded because there was apparently room to pass. When she reached the tug, there were 30 or 40 feet between the vessels, but as she got alongside the barges the tow began to sag over so that she “had to port the wheel some more so as to clear the stern barge.” This was passed at a distance of only 4 to 8 feet, and the Clevelander was then within 10 to 15 feet of the supposed channel line marked by Buoy 270. It was undoubtedly this final slight change of course to starboard, as the District Court found, which caused the Clevelander to hit bottom. If the sagging of the tow which necessitated such change to starboard was due to faulty navigation by the tug, the latter must be held liable for crowding the Clevelander out of her course, even though there was no collision with the stern barge. The Lake Shore, 201 F. 449 (D.C.N.D.Ohio); The Claremont (D.C.) 12 F.Supp. 288, affirmed Reiss Steamship Co. v. The Claremont, 80 F.(2d) 1017 (C.C.A.2) ; The Harding Highway, 53 F.(2d) 938 (C.C.A.3). But if the sagging of the tow was caused by suction created by the Clevelander’s excessive speed, it'would appear that her own fault was the proximate cause of the damage she suffered. The tow appears to have been following straight behind the tug when the latter was passed at a distance of 30 or 40 feet. Peterson thought everything all right up to that point, although he criticizes the tug for having continued in the middle of the channel instead of hauling over to the right. Not having started . to haul over before the 'Clevelander got abreast, it is most improbable that the tug master would start to do so after she had passed. Nor does either of the witnesses" }, { "docid": "13283217", "title": "", "text": "she continued to blow her passing signals, apparently continuing to invite the assent of the Stone. Being in doubt as to the Stone’s movements, it was the Etruria’s duty to sound an alarm by giving several short, rapid blasts of her whistle; and under the circumstances shown by this record, including the density of the fog, the number of vessels on opposite and differing courses, and the confusion and interruption of signals, cautious navigation under rule 15, in connection with the other rules, required the Etruria, in case the location and intention of the Stone could not otherwise be determined, to stop, and, if necessary, to reverse, until the exact course and position of the Stone could be ascertained. The New York, 175 U. S. 187, 201, 20 Sup. Ct. 67, 14 L. Ed. 126; The North Star, 62 Fed. 71, 10 C. C. A. 262; The George W. Roby, 111 Fed. 601, 49 C. C. A. 481. In Re The North Star, supra, the inconclusive and speculative nature of the appearance of broadening off of signals created only by sound is commented upon. The Etruria had no right to go drifting (as claimed), in this dense fog, at an angle of two points across the course of the other steamer with no further warning of her' approach than a repetition, at two minute intervals, of a signal asserting that she was directing her course to port. As to the Stone: Her fault, while not perhaps so great as that of the Etruria, is equally plain. She heard the Etruria’s passing signal. Her only excuse for not replying is that she did not suppose it was meant for her, but believed it was intended for the Aurania. In so assuming, she was obliged to take it for granted that the Etruria, in view of her position in the lake, was bound for Rake Superior, and so could not be intending to pass on the Stone’s starboard. There was no warrant for such conclusive assumption. The Stone’s navigator had no right to thus conclusively assume that a passing signal given by" }, { "docid": "13493140", "title": "", "text": "be established. U. S. Mexican Oil Corp. v. Pennsylvania R. Co., 20 F.(2d) 385, 386 (C.C.A.2); Tile No. 1 of New York, 61 F.(2d) 783, 785 (C.C.A.2). He rejected the contention of the Franz that the vessels were either on crossing courses or were so nearly head and head as to require a port to port passing. He found that the vessels were about half a mile apart when the Loomis blew her two-blast signal; that the Franz was nearly behind the Soreldoc, and had changed her heading half a point to the right of her original course in order to pass to the right of her; that the Franz was about one-quarter of a mile to the westward of the course of the Loomis projected forward and that, had both vessels maintained their courses, they would have passed safely starboard to starboard at least 800 feet apart. On sighting the Loomis the Franz put her rudder hard right; and half a minute after she was first sighted by the Loomis her green light was shut out and she was seen to be turning directly across the bow of the Loomis. The latter immediately blew a danger signal and two blasts, and altered her course to her left. The steamers were then from 1,200 to 1,-600 feet apart, and each was advancing at the rate of 12 miles an hour. When the Franz was seen to be continuing on her course, the Loomis put her engines in reverse and her rudder hard left, but the maneuver was ineffectual. No signals were blown by the Franz except an alarm at the moment of collision. The bow of the Loomis struck the port side of the Franz just aft of the collision bulkhead and at an angle of about forty-five degrees. 'The trial judge found that the Franz was “grossly mismanaged and negligently maneuvered.” She either deliberately maintained her course to starboard or was unable to straighten up because of the jamming of her steering gear, of which there was some evidence. No one now contends that she was not at fault." }, { "docid": "6833792", "title": "", "text": "404, 413, 17 S. Ct. 610, 41 L. Ed. 1053; The Manchioneal, 243 F. 801, 805 (C. C. A. 2); The Bayonne, 213 F. 216, 217 (C. C. A. 2); The George W. Roby, 111 F. 601, 609 (C. C. A. 6); The H. F. Dimock, 77 F. 226, 229 (C. C. A. 1); The Michigan (C. C. A.) 63 F. 280, 287 (C. C. A. 4). The initiative in signals was taken by El Sol. She blew a two-blast signal proposing a starboard to starboard passage. The Sac City, instead of reversing at once and blowing alarm signals, as she should have done, cf. The Teutonia, 23 Wall. 77, 85, 23 L. Ed. 44; The Transfer No. 10 (D. C.) 137 F. 666, 667; The Benalla (D. C.) 45 F.(2d) 864, per L. Hand, J., seems to have thought she could make the suggested maneuver safely, and replied with two blasts. She then failed to go. to port, as she now claims, because she had not sufficient speed for good steerageway. Having settled on a starboard to starboard passing, the two vessels exchanged two more two-blast signals, and then, finding themselves in more imminent peril, each reversed. The Sae City then dropped her starboard anchor, also without avail, for she struck El Sol, inflicting, as abqve stated, what turned out to be a mortal wound. As is usual, various wholly unmaintainable contentions are made in behalf of each vessel. It is said that the Sae City was in fault for dropping her starboard instead of her port anchor; that El Sol was in fault for not having gone full speed ahead. It is sufficient to say that these faults, if faults they were, were in extremis. When the two vessels came in sight of each other they were approaching each other at a rate, due to their respective speeds, of approximately eight hundred and fifty feet a minute. Consequently there was not time for \"a great deal of consideration of maneuvers. Having regard to their courses and speeds, their mutual bearings which must have been observable to each, and" }, { "docid": "17858604", "title": "", "text": "provides that “either • vessel” shall signal her intention. Had a passing agreement been reached, the collision at bar would have been avoided. When the Trippe stopped her engines to see what the lighter intended to do, it would have been possible to pass on either side. Instead of reaching an agreement by signals, each navigator attempted to divine the intention of the other. This has so often been held a mutual fault that the citation of authorities seems almost superfluous. See The Ice King, 52 F. 894, 896 (D. C. S. D. N. Y.); The Transfer No. 4, 61 F. 364 (C. C. A. 2); The Mercer, 234 F. 259, 262 (C. C. A. 2); A. H. Bull S. S. Co. v. United States, 34 F.(2d) 614, 616 (C. C. A. 2). The appellee argues that rule IV does not apply because the Poling Bros, had swung so far to port that only her green light was visible when the Trippe’s engines were put ahead. But the vessels had begun to navigate with reference to each other long before this, and admittedly the Trippe’s commander stopped his engines while he was trying to ascertain what the Poling Bros, intended to do. He says that “for a moment I saw just her green light,” and thereupon, thinking he had divined her intention to pass to starboard, he went ahead. The passing agreement should have been reached prior to this; then commander Buckalew would have not had to guess as to the Poling Bros.’ intended course. As this court said in The Bilbster, 6 F.(2d) 954, 956, “A vessel is not entitled to assume that another vessel will pass her starboard to starboard until two whistles are blown and answered.” It is unnecessary to consider other charges of fault which each vessel asserts against the other. The decree of dismissal must be reversed, and a decree entered holding the respondent liable for one-half the libelant’s damages." }, { "docid": "8187563", "title": "", "text": "to port and across the course of the ‘Gertrude’ and tow. “She failed to reply and agree to the one-blast signal timely blown by the ‘Gertrude’ for a port-to-port passing. “She failed to blow any passing signal. “She failed to effect a port-to-port passing when such passing was the only proper one under the circumstances presented. “She failed to effect a port-to-port passing when she had not indicated a desire for a starboard-to-starboard passing. “She failed to blow a passing signal to indicate that she was directing her course to port. “She failed to timely and properly maneuver her engines and helm. “She failed to sound a danger signal if those in charge of her did not consider that the port-to-port passing requested by the ‘Gertrude’ was safe and proper. “She failed to sound a danger signal when it appeared to those in charge of her that a safe passing could not bo executed, particularly if she maintained her course as she did. “She failed to slow, stop or stop and reverse her engines reasonably. “When danger of collision was or should have been apparent, she failed to take proper or timely precautions to avoid it.” . See C. J. Dick Towing Co. v. The Leo, 5 Cir., 202 F.2d 850; McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6. . That rule, 33 U.S.C.A. § 221, provides: “Nothing in these rules 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.” . Generally, the Smith and Zigler cases, supra, involved collisions caused by tugs with exceedingly long, multi-barge, forward tows (600 and 400 feet respectively), navigating narrow channels on dark nights under conditions where the lookout of the pilot house helmsman was manifestly inadequate for safe navigation under all the circumstances attending the collisions. Here, it is practically undisputed that" }, { "docid": "23616024", "title": "", "text": "that she was unseaworthy and at fault for transporting a poisonous, explosive and flammable cargo in her forward wing tank, next to the skin of the ship. VI. That the judge erred in denying petitioner limitation of liability under 46 U.S.C. § 183(a), against all claims made against it. VII. That the judge erred in holding the petitioner and RELIANCE liable for loss and damage by fire to the RELIANCE cargo, because the fire originated from the other vessel and because petitioner, as a carrier, was exempt from such liability under the Bills of Lading and by virtue of 46 U.S.C. § 1304(2) (b), and 46 U.S.C. § 182. ASSIGNMENT I I. On this assignment, appellants charge that the BEREAN violated two of the Inland Rules in failing to stop, blow proper signals or proceed with caution after she first recognized, or should have recognized, that there was a risk of collision. It is contended that the BEREAN violated Rule I, when she (1) blew a one blast signal, proposing a port-to-port passing at a time when those in charge were in doubt as to the feasibility of such a passing, and (2) turned right two or three degrees before receiving a reply to her one blast signal. Rule III was violated, say appellants, when the BEREAN failed to blow a danger signal and reverse her engines immediately upon seeing the RELIANCE in a position that might force her to sheer across the channel. Practically all of appellants' arguments on this assignment are based on an assumption that the RELIANCE, did sheer off its starboard bank and that such fact was observed, or should have been observed, by Pilot Lary of the BEREAN. The judge saw and observed the witnesses and chose to believe Lary’s version of what occurred and the reasons for his action, or lack of action, at the time. While Lary observed the position of the RELIANCE when the vessels were approximately one mile apart, he had no feeling that a collision was imminent until he heard the whistles of the RELIANCE and the sound of the" }, { "docid": "14333979", "title": "", "text": "was directing his course to starboard under their authority or requirements; but under those very rules being on the starboard side of La Cham pagne, and not advised of peculiar circumstances affecting that vessel, he was not authorized to direct his course to starboard, but was, on the contrary, required to keep his course. To have thus changed his course, though a fault under the rules, would probably not have been by itself one contributing to the collision, as it would have .brought the Lisbonense further to the eastward than she would have gone had she kept her course. Having given the one-blast signal, however, the Lisbonense was bound by article 19 to direct her course to starboard; and her failure substantially to make such change was a fault contributing to the collision, because by not so navigating she failed to reach the course of the other vessel as far ahead of her as by her own signal she engaged to do. Had she substantially so changed her course, the collision would not have happened. We '.therefore concur with the district judge in holding the Lisbonense in fault. The pilot of La Champagne also was apparently confused as to the meaning of the signals,he received and gave. He testified: . “[The Lisbonense] blowed one whistle, signifying she wanted to cross my bow and pass me oh the port hand. I acknowledged the signal, which is courtesy, * * * signifying that I understood what he was going to do. * * * It is the courtesy of captains of steamships and steamboats about this harbor always to answer a signal given by another ship, to let them know . you understand what they are doing. . [I] answered for that, and no other, reason, and gave no order because of having answered.” He added that he thought it was proper for the Lisbonense to come . to port, and that she should have given a two-blast signal. Still, he “accepted the signal when it was given, for courtesy’s sake, which is the practice of the port.” Evidently, he understood the" }, { "docid": "15956556", "title": "", "text": "in such a manner as to cause the outbound vessel to assume that the SAN PEDRO was on her own right side of the channel. 15. The BRADFORD CITY, upon seeing the true position of the tug and tow, put her engines full astern and let go her port anchor. Simultaneously, the BRADFORD CITY sounded the danger signal indicating to the tug that a starboard-to-starboard passing could not be accomplished. 16. Despite the emergency maneuvers of both tug and ship, a collision ensued with the stem of the BRADFORD CITY striking the Barge 2001 on its starboard side. It is uncontradicted that the collision occurred on the BRADFORD CITY’S side of the channel. 17. As a result of the collision, both the motor vessel and the barge sustained substantial damage and cargo belonging to the Intervenor was lost. CONCLUSIONS OF LAW 1. The collision was caused by the fault of the SAN PEDRO and those in charge of her navigation in that she violated the Narrow Channel Rule (Article 25, Inland Rules, 33 U.S.C. § 210). In addition, the tug and tow failed to pass on the port side of the BRADFORD CITY as required by the Rules. (Rule 1, Article 18, 33 U.S.C. § 203). Finally, the tug compounded these faults in a most serious way by agreeing to a port-to-port passing which she was not in a position to accomplish, but which appeared feasible to those aboard the BRADFORD CITY at the time the agreement was made. 2. Those in charge of the BRADFORD CITY navigated her in accordance with the Rules, but should have been more alert so that upon discovering the true position of the tug and tow, they might have maneuvered their ship to port to accomplish a starboard-to-starboard passing. Their failure in this respect, however, is minor in view of the major statutory faults of the SAN PEDRO. Accordingly, the BRADFORD CITY should not be held responsible for the damages to the tug and tow and should be entitled to recover her damages from the owner of the SAN PEDRO. 3. Both vessels being" } ]

[ { "docid": "23409504", "title": "", "text": "fact to withstand summary judgment. III. Because our review of an order granting summary judgment is plenary, see Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977), we consider the hospital’s summary judgment motion under the proper legal standard. Summary 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. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). While the moving party has the burden initially of identifying that evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must make a sufficient showing to establish the existence of every element necessary to its case and on which it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir.1987). Credibility determinations are not the function of the judge; rather, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 106 S.Ct. at 2513. The summary judgment standard is no different in antitrust litigation than in any other. See Matsushita Electric In dustrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also Tunis Brothers Co., Inc. v. Ford Motor Co., 823 F.2d 49 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1013, 98 L.Ed.2d 979 (1988). A claim under section 1 of the Sherman Act, 15 U.S.C. § 1 (1982), requires proof of a contract, combination or conspiracy, a restraint of trade, and an effect on interstate commerce. See Weiss, 745 F.2d at 812. We do not understand the hospital at this stage of the proceeding to be challenging either the elements of conspiracy or the interstate commerce effect of its actions; the central issue for summary judgment" } ]

[ { "docid": "8922004", "title": "", "text": "Medical Imaging, LLC, No. 08-17351, Doc. No. 225 (E.D.Pa. Jan. 6, 2011). . Order Affirming in Part and Reversing in Part Bankruptcy Court’s Orders, DVI Receivables XIV, LLC, et al. v. Maury Rosenberg, No. 10-CIV-24347, Doc. No. 11 (S.D.Fla. Sept. 27, 2011). . Rosenberg II at 9. . Id. at 13. . Id. at 13, n. 7. . In re Rosenberg, 472 Fed.Appx. 890 (11th Cir.2012). . Maury Rosenberg v. DVI Receivables, XIV, LLC, et al., Adv. No. 10-3812 (Bankr.S.D.Fla.). . Memorandum Opinion Granting Mot. of Defs. Ashland Funding, LLC, Robert Brier, and BG Management Services, Inc.’s Motion to Dismiss, Maury Rosenberg v. DVI Receivables, LLC, et al., Adv. No. 103812, Doc. No. 168 at 1-2 (Bankr.S.D.Fla. Mar. 26, 2012). . Id. at 7. . Id. at 11. . Statement in Support at 6. . Order, In re: National Medical Imaging, LLC, no. 08-17351, Doc. No. 274 (Bankr.E.D.Pa. May 2, 2014). . Notice of Appeal, In re National Medical Imaging, LLC, no. 08-17351, Doc. No. 282 (Bankr.E.D.Pa. May 12, 2014). . Statement in Support of May 2, 2014 Bench and Written Orders Denying Petitioning Creditors’ Motions for Reconsideration of my December 28, 2009 Memorandum Opinion and Order, In re: National Medical Imaging, LLC, no. 08-17351, Doc. No. 284 (Bankr. E.D.Pa. May 13, 2014). . Id. at 15. . Id. at 1-2. . Notice of Appeal, In re National Medical Imaging, LLC, no. 08-17351, Doc. No. 289 (Bankr E.D.Pa.). . Doc. No. 8. . Meridian Bank v. Alten, 958 F.2d 1226, 1229 (3d Cir.1992) (citing In re Sharon Steel Corp., 871 F.2d 1217, 1222 (3d Cir.1989)). . See In re Mintze, 434 F.3d 222, 227 (3d Cir.2006). . Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 248 (3d Cir.2006). There is only one exception to this general rule, which is not at issue in these appeals: when non-mutual offensive collateral estoppel is claimed, the standard of review is abuse of discretion. Id. . Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986). . Suppan v. Dadonna, 203 F.3d 228, 233 (3d Cir.2000). . Bd. of" }, { "docid": "18020960", "title": "", "text": "56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “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). The essential inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505. To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). The non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-323, 106 S.Ct. 2548. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then sum mary judgment is proper. Id. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). When" }, { "docid": "8236727", "title": "", "text": "Mot. for Class Cert.) Both sides also brought Daubert challenges against the other’s expert witnesses. (Daubert Mots.) II. DISCUSSION A. Legal Standard Summary judgment is proper if, drawing all reasonable inferences in favor of the non-moving party, 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(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1107 (8th Cir. 2016). “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’ ” Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 1). The party moving for summary judgment bears the burden of showing that the material facts in the case are undisputed. Id. at 323, 106 S.Ct. 2548. However, a party opposing summary judgment “ ‘may not rest upon the mere allegation or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial,’ and ‘must present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ ” Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505). Summary judgment is also proper where the nonmoving party fails “ ‘to make a showing sufficient to establish the existence of an element essential to that party’s case....’” Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 844 (8th Cir. 2015) (quoting Celotex, 477. U.S. at 322, 106-S.Ct. 2548). “[T]he nonmoving party must ‘do more than simply show that there is some metaphysical doubt as to the material facts.’” Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 910 (8th Cir. 2010) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475" }, { "docid": "8922007", "title": "", "text": "(Bankr.S.D.Fla. Apr. 7, 2009). . Motion to Strike Second Amended Involuntary Petition, no. 09-13196, In re Rosenberg, Doc. No. 52 (Bankr.S.D.Fla. Apr. 15, 2009). . Opposition to Alleged Debtor’s Motion to Strike, no. 09-13196, Doc. No. 53 (Bankr. S.D.Fla. Apr. 15, 2009). . Tr. of Apr. 20, 2009 Hearing, no. 09-13196, In re Rosenberg, Doc. No. 81 at 2 (Bankr.S.D.Fla. Apr. 23, 2009). . Rosenberg I at 832. . Id. at 840-48. . Id. at 841. . Mot. for Rehearing or, Alternatively, to Alter or Amend Order Granting Motion to Dismiss, no. 0913196, In re Rosenberg, Doc. No. 99 (Bankr.S.D.Fla. Aug. 31, 2009). . Notice of Appeal, no. 09-13196, In re Rosenberg, Doc. No. 130 (Bankr.S.D.Fla. Oct. 18, 2010). . Rosenberg II at 2, n. 2 (specifying that Ashland is one of the appellants). . Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 4433 (1981). . Maury Rosenberg v. DVI Receivables, XIV, LLC, et al., Adv. No. 10-3812 (Bankr.S.D.Fla.). . Memorandum Opinion Granting Mot. of Defs. Ashland Funding, LLC, Robert Brier, and BG Management Services, Inc.’s Motion to Dismiss, Maury Rosenberg v. DVI Receivables, LLC, et al., Adv. No. 103812, Doc. No. 168 at 1-2 (Bankr.S.D.Fla. Mar. 26, 2012). . Id. at 5, 7. . See In re VII Holdings Co., 362 B.R. 663, 664 (Bankr.D.Del.2007) (stating that request of non-petitioning creditors is before the court in an involuntary bankruptcy proceeding). . Ashland raises two further arguments against the collateral estoppel effect of Rosenberg I and II: 1) that the second amended involuntary bankruptcy petition was a legal nullity; and 2) that Ashland is an unsuccessful intervenor in the Rosenberg bankruptcy. Both arguments are not supported by the authorities upon which Ashland relies. Ashland cites In re Ross, 135 B.R. 230, 238-39 (Bankr.E.D.Pa.1991), for the proposition that the determination that an involuntary bankruptcy petition was filed in bad faith renders any amended involuntary petitions a legal nullity. Instead, In re Ross stands for the rather more mundane proposition that a defect in an initial involuntary bankruptcy petition filed in bad faith cannot be" }, { "docid": "14903407", "title": "", "text": "143 (3d Cir.1988). An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” only if its resolution could affect the result of the suit under governing law. Id. In evaluating a summary judgment motion, the court “must view the facts in the light most favorable to the non-moving party,” and make every reasonable inference in that party’s favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir.2005). If, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). The party opposing summary judgment must support each essential element of that party’s opposition by “citing to particular parts of materials in the record.” Fed R. Civ. P. 56(e)(1). “The Court need consider only the cited materials” when determining whether there exists a genuine issue of material fact for trial. Fed R. Crv. P. 56(c)(3). If the cited evidence is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). This requirement upholds the “underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.” Walden v. Saint Gobain Corp., 323 F.Supp.2d 637, 641 (E.D.Pa.2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976)). The same standards and burdens apply on cross motions for summary judgment. See Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir.1987); Peters Twp. Sch. Dist. v. Hartford Accident and Indem. Co., 833 F.2d 32, 34 (3d Cir.1987). Cross motions for summary judgment: are no more than a claim by each side that it alone is entitled to summary judgment," }, { "docid": "8922003", "title": "", "text": "improper and seeks to recover damages from U.S. Bank as a result. . In re Rosenberg, 414 B.R. 826, 831 (Bankr.S.D.Fla.2009). . Id. at 832. . Id. . Id. . In re Rosenberg, 414 B.R. 826 (Bankr.S.D.Fla.2009). . Id. at 840-44. . Id. at 849. . Eastern District Bankruptcy Dismissal at 5. . Id. . Id. at 20-30. . Statement in Support of May 2, 2014 Bench and Written Orders Denying Petitioning Creditors' Motions for Reconsideration of my December 28, 2009 Memorandum Opinion and Order, In re: National Medical Imaging, LLC, no. 08-17351, Doc. No. 284 at 5 (Bankr.E.D.Pa. May 13, 2014). . Order Denying Petitioning Creditors’ Motion for Rehearing and Granting Motion to Alter or Amend Order Granting Motion to Dismiss Involuntary Chapter 7 Case, In re Rosenberg, No. 09-13196, Doc. No. 129 (Bankr.S.D.Fla.2010). . Notice of Appeal, no. 09-13196, In re Rosenberg, Doc. No. 130 (Bankr.S.D.Fla. Oct. 18, 2010). . Order, In re National Medical Imaging, LLC, No. 08-17351, Doc. No. 225 at ¶24 (E.D.Pa. Jan. 6, 2011). . Order, In re National Medical Imaging, LLC, No. 08-17351, Doc. No. 225 (E.D.Pa. Jan. 6, 2011). . Order Affirming in Part and Reversing in Part Bankruptcy Court’s Orders, DVI Receivables XIV, LLC, et al. v. Maury Rosenberg, No. 10-CIV-24347, Doc. No. 11 (S.D.Fla. Sept. 27, 2011). . Rosenberg II at 9. . Id. at 13. . Id. at 13, n. 7. . In re Rosenberg, 472 Fed.Appx. 890 (11th Cir.2012). . Maury Rosenberg v. DVI Receivables, XIV, LLC, et al., Adv. No. 10-3812 (Bankr.S.D.Fla.). . Memorandum Opinion Granting Mot. of Defs. Ashland Funding, LLC, Robert Brier, and BG Management Services, Inc.’s Motion to Dismiss, Maury Rosenberg v. DVI Receivables, LLC, et al., Adv. No. 103812, Doc. No. 168 at 1-2 (Bankr.S.D.Fla. Mar. 26, 2012). . Id. at 7. . Id. at 11. . Statement in Support at 6. . Order, In re: National Medical Imaging, LLC, no. 08-17351, Doc. No. 274 (Bankr.E.D.Pa. May 2, 2014). . Notice of Appeal, In re National Medical Imaging, LLC, no. 08-17351, Doc. No. 282 (Bankr.E.D.Pa. May 12, 2014). . Statement in Support of" }, { "docid": "2713536", "title": "", "text": "Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is material only if it could affect the result of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether to grant summary judgment, the district court “must view the facts in the light most favorable to the non-moving party” and take every reasonable inference in that party’s favor. Hugh v. Butler County Family YMCA, 418 F.3d 265 (3d Cir.2005). If, after viewing all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). Because a motion for summary judgment looks beyond the pleadings, factual specificity is required of the party opposing the motion. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. To prevail, the opposing party may not simply restate the allegations made in its pleadings or merely rely upon “self-serving conclusions, unsupported by specific facts in the record.” Id. The opposing party must support each essential element with concrete evidence in the record. See id. This requirement upholds the “underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.” Walden v. Saint Gobain Corp., 323 F.Supp.2d 637, 641 (E.D.Pa.2004) (restating Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976)). In describing the background of this case, I have set out those record facts that plaintiff does not dispute and construed them in the light most favorable to plaintiff. In addition, both parties have offered affidavits in support of their summary judgment papers. I have disregarded any “facts” set forth in an affidavit that contradict the affiant’s deposition testimony. See Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir.1991) (holding that unless an explanation is offered, when an affidavit and deposition by the non-moving party give" }, { "docid": "11835524", "title": "", "text": "of law.” Fed. R. Civ. P. 56(c). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 451 (6th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “A fact is material only if its resolution will affect the outcome of the lawsuit.” Hedrick, 355 F.3d at 451-52 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In deciding a motion for summary judgment, the Court must view the evidence in a light most favorable to the non-movant as well as draw all reasonable inferences in the non-movant’s favor. See Sutherland v. Michigan Dep’t of Treasury, 344 F.3d 603, 613 (6th Cir.2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.2003). “The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party’s case.” Hedrick, 355 F.3d at 451 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). To meet this burden, the moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.’” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir.2001) (quoting Matsushi-ta Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); see also, Fed. R. Civ. P. 56(e). However where “the crucial issue is one on which the movant will bear the ultimate burden of proof at trial, summary judgment can be entered only if the movant submits evidentiary materials" }, { "docid": "14903406", "title": "", "text": "claims. Id. at 189. In light of this Court’s dismissal of the Chambers Plaintiffs’ § 504 and ADA claims based on a perception of their position as the Court had understood the Chambers Plaintiffs to have articulated it, and because the Court of Appeals did not find summary judgment to be appropriate based on its review of the record with respect to the § 504 and ADA claims, it vacated the grant of summary judgment on those claims and affirmed the remainder of this Court’s ruling. Upon remand, both parties filed motions for summary judgment. III. STANDARD OF REVIEW Upon motion of a party, summary judgment is appropriate if, “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, ... admissions, interrogatory answers, or other materials,” the moving party persuades the district court that “there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party.” Fed. R. Civ. P. 56(c); Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir.1988). An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” only if its resolution could affect the result of the suit under governing law. Id. In evaluating a summary judgment motion, the court “must view the facts in the light most favorable to the non-moving party,” and make every reasonable inference in that party’s favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir.2005). If, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). The party opposing summary judgment must support each essential element of that party’s opposition by “citing to particular parts of materials" }, { "docid": "11276440", "title": "", "text": "ReDigi’s alleged infringement of Capitol’s performance and display rights. (Doc. No. 54.) Both parties responded on August 14, 2012 and replied on August 24, 2012. (Doc. Nos. 76, 79, 87, 90.) The Court heard oral argument on October 5, 2012. II. Legal Standard Pursuant to Federal Rule of Civil Procedure 56(a), a court, may not grant a motion for summary judgment unless “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that it is entitled to summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court “is not to weigh 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.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (internal quotation marks omitted); accord Anderson, 477 U.S. at 249, 106 S.Ct. 2505. As such, “if there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party’s] favor may be drawn, the moving party simply cannot obtain a summary judgment.” Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir.2007) (internal quotation marks omitted). Inferences and burdens of proof on cross-motions for summary judgment are the same as those for a unilateral motion. See Straube v. Fla. Union Free Sch. Dist., 801 F.Supp. 1164, 1174 (S.D.N.Y.1992). “That is, each cross-movant must present sufficient evidence to satisfy its burden of proof on all material facts.” U.S. Underwriters Ins. Co. v. Roka LLC, No. 99 Civ. 10136(AGS), 2000 WL 1473607, at *3 (S.D.N.Y. Sept. 29, 2000); see Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir.1988). III. Discussion Section 106 of the Copyright Act grants “the owner of copyright under" }, { "docid": "9727570", "title": "", "text": "to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court may grant summary judgment only if the movant shows that “there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party.” Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir.1988). An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant’s favor regarding that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it could affect the result of the suit under governing law. Id. In deciding whether to grant summary judgment, the district court “must view the facts in the light most favorable to the non-moving party,” and make every reasonable inference in that party’s favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir.2005). If, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). III. DISCUSSION A. Due Process Plaintiff alleges that Defendants contravened the Fifth and Fourteenth Amendments when they deprived him of a pro tected interest in continued employment as a GM. I disagree. At the time of his firing, Plaintiff had no protected interest in his job. The Constitution’s Fourteenth Amendment prohibits a state from depriving a person of “life, liberty, or property without due process of law.” U.S. Const, amend. XIV, sec. 1. Because the Fifth Amendment’s due process guarantee applies only against federal actors, it is inapplicable here. Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073, 1076 (3d Cir.1997) (due process claim against state official analyzed under the Fourteenth, rather than the Fifth, Amendment); Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir.2000) (“The Fifth Amendment applies only to violations of constitutional rights by the United States or a federal actor.”) See also Morehead" }, { "docid": "19215091", "title": "", "text": "of his parole. V. STANDARD OF REVIEW A court should grant summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A “genuine” issue exists if “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). A factual dispute is “material” when it “might affect the outcome of the suit under the governing law.” Id. “In determining the facts, the court should draw all reasonable inferences in favor of the nonmoving party.” Id. at 255, 106 S.Ct. 2505; Highlands Ins. Co. v. Hobbs Group, LLC, 373 F.3d 347, 351 (3d Cir.2004). The nonmoving party, however, cannot rely merely upon bare assertions, conclusory allegations, or suspicions to support its claim. Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982); see also Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (stating that summary judgment may be granted if the evidence is “merely colorable” or “not significantly probative”). In a summary judgment motion, the moving party has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. However, where the non-moving party bears the burden of proof, it must “make a showing sufficient to establish the existence of [every] element essential to that party’s case.” Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987), citing Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. If reasonable minds can differ as to the import of the proffered evidence that speaks to an issue of material fact, summary judgment should not be granted. VI. DISCUSSION A. Claims Under 42 U.S.C. § 1983 To state a claim under 42 U.S.C. § 1983, a plaintiff must show that" }, { "docid": "9293719", "title": "", "text": "1988). See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Id. Hugh v. Butler Cty. Family YMCA , 418 F.3d 265, 267 (3d Cir. 2005). Boyle v. Cty. of Allegheny , 139 F.3d 386, 393 (3d Cir. 1998). Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Walden v. Saint Gobain Corp. , 323 F.Supp.2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co. , 534 F.2d 566, 573 (3d Cir. 1976) ). Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ; Wisniewski v. Johns-Manville Corp. , 812 F.2d 81, 83 (3d Cir. 1987). Bimbo Bakeries USA, Inc. v. Botticella , 613 F.3d 102, 110 (3d Cir. 2010) (citing 12 Pa. Cons. Stat. Ann. § 5302 ). 12 Pa. Cons. Stat. Ann. § 5307. Id. See 1-A Trade Secrets: Law and Practice [18] (2014) (\"The Pennsylvania UTSA provides the standard three-year statute of limitations subject to the discovery rule.\") (citing 12 Pa. Const. Stat. Ann. § 5307 ). See Danysh v. Eli Lilly and Co. , 461 Fed.Appx. 75, 77 (3d Cir. 2012) (explaining that in the context of fraud, negligence, breach of warranty, and failure to warn claims, which are subject to the discovery rule, \"the limitations period commences upon the plaintiff's 'actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another's conduct, without the necessity of notice of the full extent of the injury, the fact of actual negligence, or precise cause' \") (quoting Gleason v. Borough of Moosic , 609 Pa. 353, 15 A.3d 479, 484 (2011) ); see also Highland Tank & Mfg. Co. v. PS Int'l, Inc. , 393 F.Supp.2d 348, 354 (W.D. Pa. 2005) (stating that under the discovery rule, a plaintiff has a certain number of years under the applicable statute of limitations \"to bring a claim from the date [the] plaintiff knew or reasonably should have known that the plaintiff has" }, { "docid": "9293718", "title": "", "text": "those documents that support Heraeus' misappropriation claim under German law.\" Mot. for Summ. J. on Statutes of Limitations, Ex. 12 at ¶ 3. Mot. for Summ. J. on Statutes of Limitations, Ex. 21 at 21. Id. , Ex. 21 at 41. Id. , Ex. 21 at 44. In addition, during this time period, Heraeus continued to represent to the German court that it had evidence of Esschem's participation in the misappropriation. For example, by February 11, 2011, Heraeus \"had reviewed the documents produced by Esschem and found evidence in those documents that supports Heraeus' misappropriation claim under German law,\" and that \"the evidence that Heraeus has already discovered from Esschem is critical to Heraeus' case.\" See id. , Ex. 18 at 10, 12-13. Heraeus contends that its discovery into whether Esschem misappropriated its trade secrets continued until December 2011, when it completed discovery in a similar § 1782 discovery action against Esschem that it had filed in Indiana. Fed. R. Civ. P. 56(a), (c)(1)(A). Miller v. Ind. Hosp. , 843 F.2d 139, 143 (3d Cir. 1988). See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Id. Hugh v. Butler Cty. Family YMCA , 418 F.3d 265, 267 (3d Cir. 2005). Boyle v. Cty. of Allegheny , 139 F.3d 386, 393 (3d Cir. 1998). Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Walden v. Saint Gobain Corp. , 323 F.Supp.2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co. , 534 F.2d 566, 573 (3d Cir. 1976) ). Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ; Wisniewski v. Johns-Manville Corp. , 812 F.2d 81, 83 (3d Cir. 1987). Bimbo Bakeries USA, Inc. v. Botticella , 613 F.3d 102, 110 (3d Cir. 2010) (citing 12 Pa. Cons. Stat. Ann. § 5302 ). 12 Pa. Cons. Stat. Ann. § 5307. Id. See 1-A Trade Secrets: Law and Practice [18] (2014) (\"The Pennsylvania UTSA provides the standard three-year statute of limitations" }, { "docid": "8250245", "title": "", "text": "MEMORANDUM AND ORDER Kathryn H. Vratil, United States District Judge Grace Furr brings claims against her former employer, Nueterra Healthcare Management, LLC (“Nueterra”); Ridge-wood Surgery & Endoscopy Center, LLC (“Ridgewood”) and Joseph T. Poggi, III., M.D. (“Dr. Poggi”). Under Title VII, 42 U.S.C § 2000e et seq., plaintiff alleges that Nueterra created a sexually hostile work environment, constructively discharged her based on sex and retaliated because she engaged in protected activity. This matter comes before the Court on Defendant Nueterra Healthcare Management, LLC’s Motion For Summary Judgment (Doc. #80) filed March 4, 2015. For reasons set forth below, the Court finds that the motion should be sustained in part. Legal Standards Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hill v. Allstate Ins. Co., 479 F.3d 735, 740 (10th Cir.2007). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence in support of a party’s position. Id. at 252,106 S.Ct. 2505. The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Once the moving party meets its burden, the burden shifts to the nonmov-ing party to demonstrate that genuine issues remain for trial as to those dispositive matters for which she carries the burden of proof. Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89" }, { "docid": "8922006", "title": "", "text": "Trustees of Trucking Employees of N. Jersey Welfare Fund, Inc.-Pension Fund v. Centra, 983 F.2d 495, 505 (3d Cir.1992). . E.g., Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.1995). . Jean Alexander Cosmetics, Inc., 458 F.3d at 253 (quoting Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)) (ellipsis original). . Witkowski v. Welch, 173 F.3d 192, 206 (3d Cir.1999) (citing Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.1970)). . Runkel’s Estate v. United States, 689 F.2d 408, 421 (3d Cir.1982) (citing Restatement (Second) of Judgments § 34, cmt. a). . See Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 4449 (1981). . See Taylor v. Sturgell, 553 U.S. 880, 892-93, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (internal quotations omitted). . 11 U.S.C. § 303(a), (b). . Joint Statement at ¶ 1. . Rosenberg I at 830. . Joint Statement at ¶ 4. . Second Amended Involuntary Petition, no. 09-13196, In re Rosenberg, Doc. No. 46 (Bankr.S.D.Fla. Apr. 7, 2009). . Motion to Strike Second Amended Involuntary Petition, no. 09-13196, In re Rosenberg, Doc. No. 52 (Bankr.S.D.Fla. Apr. 15, 2009). . Opposition to Alleged Debtor’s Motion to Strike, no. 09-13196, Doc. No. 53 (Bankr. S.D.Fla. Apr. 15, 2009). . Tr. of Apr. 20, 2009 Hearing, no. 09-13196, In re Rosenberg, Doc. No. 81 at 2 (Bankr.S.D.Fla. Apr. 23, 2009). . Rosenberg I at 832. . Id. at 840-48. . Id. at 841. . Mot. for Rehearing or, Alternatively, to Alter or Amend Order Granting Motion to Dismiss, no. 0913196, In re Rosenberg, Doc. No. 99 (Bankr.S.D.Fla. Aug. 31, 2009). . Notice of Appeal, no. 09-13196, In re Rosenberg, Doc. No. 130 (Bankr.S.D.Fla. Oct. 18, 2010). . Rosenberg II at 2, n. 2 (specifying that Ashland is one of the appellants). . Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 4433 (1981). . Maury Rosenberg v. DVI Receivables, XIV, LLC, et al., Adv. No. 10-3812 (Bankr.S.D.Fla.). . Memorandum Opinion Granting Mot. of Defs. Ashland Funding," }, { "docid": "2713535", "title": "", "text": "MEMORANDUM O’NEILL, District Judge. Michele Marshall, acting on behalf of herself and her minor son, asserts that the Nazareth Academy Grade School violated the Rehabilitation Act and the Americans with Disabilities Act when it refused to readmit her son because of his behavior and disciplinary problems. I conclude that the Rehabilitation Act does not apply to Nazareth Academy because it does not receive federal funding and that Title III of the ADA does not apply to the Academy because it is a religious institution. I also conclude that even if these statutes were applicable to Nazareth Academy, the Marshall boy’s behavior problems do not constitute a “disability” under federal law. Accordingly, I will grant Nazareth’s motion for summary judgment. LEGAL STANDARD Upon motion of any party, summary judgment is appropriate “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. Crv. P. 56(c). The moving party must initially show the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is material only if it could affect the result of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether to grant summary judgment, the district court “must view the facts in the light most favorable to the non-moving party” and take every reasonable inference in that party’s favor. Hugh v. Butler County Family YMCA, 418 F.3d 265 (3d Cir.2005). If, after viewing all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). Because a motion for summary judgment looks beyond the pleadings, factual specificity is required of the party opposing the motion. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. To prevail, the opposing party may not simply restate" }, { "docid": "10763699", "title": "", "text": "of homes. The corbels Plaintiffs hired Jacobson to build were custom made and designed only for Plaintiffs’ home. . Fed.R.Civ.P. 56(a). Rule 56 is applicable to bankruptcy adversary proceedings via Federal Rule of Bankruptcy Procedure 7056. . LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir.2004). . Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. (citing Federal Rule of Civil Procedure 56). . Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir.2002) (internal quotations omitted). . Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548. .Doc. 36 at 1. . Id. at 1-2. . Id. at 2. . Fed.R.Civ.P. 56(c); see also Diaz, 289 F.3d at 674 (\"[T]he non-movant- must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56[ (c) ] or explain why he cannot ... under Rule 56[ (d) ].”). . Fed.R.Civ.P. 56(e)(2). . Fed.R.Civ.P. 56(e)(3). . See, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (\"Although a pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers, this court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” (internal quotations and alterations omitted)). . DSC Nat’l Properties, LLC v. Johnson (In re Johnson), 477 B.R. 156, 168 (10th Cir. BAP 2012) (internal quotations and alterations omitted). . Id. at 169. . Id. . Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1375 (10th Cir.1996). . Johnson v. Riebesell (In re Riebesell), 586 F.3d 782, 791 (10th Cir.2009). . Id. at 792. . In re Young, 91 F.3d at 1375; see also 6050 Grant, LLC v. Hanson (In re Hanson), 428 B.R. 475, 486 (Bankr.N.D.Ill.2010) (noting that false pretenses" }, { "docid": "3827596", "title": "", "text": "on the trustee's motion. . This adversary is one of the many adversaiy proceedings filed by the trustee in connection with these jointly administered bankruptcy cases. These cases include: Trans Continental Television Productions, Inc., case no. 07-bk-01856, Trans Continental Aviation, Inc., case no. 07-bk-02431, Trans Continental Management, Inc., case no 07-bk-02432, Trans Continental Publishing, Inc., case no 07-bk-04160, Louis J. Pearlman Enterprises, LLC, case no 07-bk-01779, and TC Leasing, LLC, case no. 07-bk-04160. . All references to the Bankruptcy Code are to Chapter 11 of the United States Code. . Fla. Stat. §§ 726.105, 726.106 and 726.108. . Doc. No. 4. .Burger King Corp. v. E-Z Eating, 41 Corp., 572 F.3d 1306, 1313 (11th Cir.2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. . Evers v. General Motors Corp. 770 F.2d 984, 986 (11th Cir.1985). . Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386, 1396 (11th Cir.1994). . Matsushita Elec. Industrial Co. v. Zenith Radio Corp, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . In re World Vision Entertainment, Inc., 275 B.R. 641, 656 (Bankr.M.D.Fla.2002). . Cuthill v. Greenmark (In re World Vision Entertainment, Inc.), 275 B.R. 641, 656 (Bankr.M.D.Fla.2002); see also Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1312 (M.D.Fla.2009); In re Old Naples Securities, Inc., 343 B.R. 310, 319-20 (Bankr.M.D.Fla.2006); In re McCarn's Allstate Finance, Inc., 326 B.R. 843, 849-52 (Bankr.M.D.Fla.2005). . World Vision, 275 B.R. at 656. . United States v. Silvestri, 409 F.3d 1311, 1317 n. 6 (11th Cir.2005). . Wiand, 611 F.Supp.2d at 1312. . Ex. B to Plaintiff’s Motion for Partial Summary Judgment (Doc. No. 46), p. 21. . This Court previously has taken judicial notice of the contents of Pearlman plea agreement for use in certain other adversary proceedings relating to the EISA Program and the TCTS Stock Program, but has not yet done so in this adversary proceeding (Doc. No. 3179 in Main Case). On October 26, 2010, the trustee filed" }, { "docid": "19423529", "title": "", "text": "Paul S. Diamond, District Judge In this coverage dispute, I must decide whether an insured can recover under a homeowners' policy for fire damage to her residence when her mentally disturbed husband-also an insured-intentionally set the fire. Because both the policy and the law preclude any recovery, I will dismiss the wife's breach of contract claim and grant summary judgment in the carrier's favor. I. LEGAL STANDARDS-SUMMARY JUDGMENT I may grant summary judgment \"if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Fed. R. Civ. P. 56(a). The moving party must initially show the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is material only if it could affect the result of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). I \"must view the facts in the light most favorable to the non-moving party,\" and make every reasonable inference in that party's favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). If I then determine that there is no genuine issue of material fact, summary judgment is appropriate. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Summary judgment is appropriate where the moving party shows that there is an absence of evidence to support the nonmoving party. See id. at 325, 106 S.Ct. 2548. \"A nonmoving party must adduce more than a mere scintilla of evidence in its favor ... and cannot simply reassert factually unsupported allegations contained in its pleadings.\" Williams v. Borough of W. Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505, and Celotex, 477 U.S. at 325, 106 S.Ct. 2548 ). Where a moving party identifies an absence of necessary evidence, the nonmoving party \"must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal" } ]

[ { "docid": "22587765", "title": "", "text": "a fiduciary within the meaning of the Bankruptcy Act. See In re Frazzetta, 1 F.Supp. 122 (W.D.N.Y.1932). Short’s arguments are not persuasive and fail to address current law. Because the broad general definition of fiduciary — a relationship involving confidence, trust, and good faith — is inapplicable in the dischargeability context, ordinary commercial relationships are excluded from the reach of section 523(a)(4). In re Schultz, 46 B.R. 880, 884 (Bankr.D.Nev.1985). The trust must have been created before the act of wrongdoing. The debtor must have been a trustee before the wrong and not a trustee ex maleficio. Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 153, 79 L.Ed. 393 (1934); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986). Thus, constructive or implied trusts are excluded, but statutory trusts are not. In re Pedrazzini, 644 F.2d 756, 758 n. 2 (9th Cir.1981). Although the concept of fiduciary capacity is a narrowly defined question of federal law, state law can be consulted to determine when a trust exists. Id. at 758; Haller, 780 F.2d at 795-96 (the meaning of “fiduciary” in section 523(a)(4) is an issue of federal law reviewed de novo). In Haller, we applied California statutory and case law to determine that partners under California law are fiduciaries under section 523(a)(4). We held that the partnership debt was non-dischargeable. Haller, 780 F.2d at 796-97. See also Matter of McCraney, 63 B.R. 64, 65 n. 3 (Bankr.N.D.Ala.1986) (listing of discharge-ability cases in seven circuits); but see In re Hurbace, 61 B.R. 563, 566 (Bankr.W.D.Tex.1986) (refusing to follow Haller because Texas courts have not expanded partnership relationship). Furthermore, we reasoned that “[i]f state law makes clear that a partner necessarily is a trustee over partnership assets for all purposes, then that partner is a fiduciary within the narrow meaning of § 523(a)(4).” Haller, 780 F.2d at 797. In this case, the Washington statute and case law make clear that Short was a fiduciary within the meaning of section 523(a)(4). In language identical to the California statute in Haller, the Washington statute provides in pertinent part: Every partner" } ]

[ { "docid": "11440653", "title": "", "text": "when he opined: I realize that many lower court decisions [after] the Davis decision have in effect ignored the Supreme Court’s teaching regarding technical and express trusts. Currently, a majority of the decisions simply look to state law to see if some fiduciary obligation in a generalized sense has been created. Once that is established, these courts essentially assume the federal definition is the same. See, e.g., Ragsdale v. Haller (In re Ragsdale), 780 F.2d 794, 796-97 (9th Cir.1986) (“California has made all partners trustees over the assets of the partnership. Accordingly, we hold that California partners are fiduciaries within the meaning of § 523(a)(4)”); See also In re Short, 818 F.2d 693 (9th Cir.1987) (Washington law); In re Mailath, 108 B.R. 290 (Bankr.N.D.Okla.1989); In re Blatnik, 101 B.R. 718 (Bankr.E.D.Okla.1989); In re Selenske, 103 B.R. 200 (Bankr.E.D.Wis.1989); In re Guy, 101 B.R. 961 (Bankr.N.D.Ind.1988); In re Crosswhite, 91 B.R. 156 (Bankr.M.D.Fla.1988) (North Carolina law); In re Dino, 82 B.R. 184 (Bankr.D.R.I.1988); In re Owens, 54 B.R. 162 (Bankr.D.S.C.1984); In re Kraus, 37 B.R. 126 (Bankr.E.D.Mich.1984). [Footnote 1. It should be noted that other courts have looked to state law and found state law did not create a fiduciary duty among partners that would implicate § 523(a)(4). See In re Weiner, 95 B.R. 204 (Bankr.D.Kan.1989); In re Napoli, 82 B.R. 378 (Bankr.E.D.Pa.1988) (New Jersey law); In re Ryan, 90 B.R. 554 (Bankr.S.D.Fla.1988); In re Hurbace, 61 B.R. 563 (Bankr.W.D.Tex.1986).] This approach in my judgment does not give proper attention to the narrowness of the federal definition of fiduciary. [Footnote omitted.] The federal law is aimed only at the express trust situation in which the debtor either expressly signified his intention at the outset of the transaction, or was clearly put on notice by some document in existence at the outset, that he was undertaking the special responsibilities of a trustee to account for his actions over and above the normal obligations that contracting parties have to each other in a commercial transaction. The concept of “incorporation by reference” of various state law duties labeled as fiduciary obligations does not serve" }, { "docid": "10255876", "title": "", "text": "executors, or public officers and, absent special considerations, does not extend to the more general class of fiduciaries such as agents, bailees, brokers, factors, and partners. As such the alleged indebtedness at issue in this case is not a debt for defalcation while acting in a fiduciary capacity. See also In re Stone, 91 B.R. 589 (D.Utah 1988); In re Lang, 108 B.R. 586 (Bankr.N.D.Ohio 1989); In re Braudis, 86 B.R. 1001 (Bankr.W.D.Mo.1988); In re Holman, 42 B.R. 848 (Bankr.E.D.Mo.1984). I realize that many lower court decisions following the Davis decision have in effect ignored the Supreme Court’s teaching regarding technical and express trusts. Currently, a majority of the decisions simply look to state law to see if some fiduciary obligation in a generalized sense has been created. Once that is established, these courts essentially assume the federal definition is the same. See, e.g., Ragsdale v. Haller, 780 F.2d 794, 796-97 (9th Cir.1986), (“California has made all partners trustees over the assets of the partnership. Accordingly, we hold that California partners are fiduciaries within the meaning of § 523(a)(4)”). See also In re Short, 818 F.2d 693 (9th Cir.1987) (Washington law); In re Mailath, 108 B.R. 290 (Bankr.N.D.Okl.1989); In re Blatnik, 101 B.R. 718 (Bankr.E.D.Okla.1989); In re Selenske, 103 B.R. 200 (Bankr.E.D.Wis.1989); In re Guy, 101 B.R. 961 (Bankr.N.D.Ind.1988); In re Crosswhite, 91 B.R. 156 (Bankr.M.D.Fla.1988) (North Carolina Law); In re Dino, 82 B.R. 184 (Bankr.D.R.I.1988); In re Owens, 54 B.R. 162 (Bankr.D.S.C.1984); In re Kraus, 37 B.R. 126 (Bankr.E.D.Mich.1984). This approach in my judgment does not give proper attention to the narrowness of the federal definition of fiduciary. The federal law is aimed only at the express trust situation in which the debtor either expressly signified his intention at the outset of the transaction, or was clearly put on notice by some document in existence at the outset, that he was undertaking the special responsibilities of a trustee to account for his actions over and above the normal obligations that contracting parties have to each other in a commercial transaction. The concept of “incorporation by reference” of various state" }, { "docid": "4660538", "title": "", "text": "District of Oklahoma has concluded that Oklahoma common law creates the requisite trust relationship between general partners under § 523(a)(4). Furthermore, the Ninth Circuit Court of Appeals, construing similar common law in California and Washington, has determined that such laws create the requisite trust relationship between general partners or joint venturers under § 523(a)(4). See Ragsdale v. Haller, 780 F.2d 794, 796-797 (9th Cir.1986); Lewis v. Short, 818 F.2d 693, 695 (9th Cir.1987). The Court agrees with the reasoning of these cases and holds that Mailath was acting in a fiduciary capacity with respect to Susi in regard to partnership matters. 19. Finally, the evidence clearly and convincingly indicates that Mailath induced Susi to enter into the debt by fraud. Fraud within the meaning of § 523(a)(4) consists of positive, intentional misrepresentation or falsehood. In re Katzen, 47 B.R. 738, 742 (Bankr.D.Mass.1985). By intentionally misrepresenting the true nature of the notes and the partnership’s financial status, Mai-lath perpetrated a fraud on Susi and breached his fiduciary duty. The Court finds that Susi would not have entered into the debt were it not for the fraudulent representations of Mailath. 20. Accordingly, the debt of Susi was incurred as a result of Mailath’s fraud while acting in a fiduciary capacity and such debt is excepted from discharge under § 523(a)(4). 21. The Court reserves for a later hearing the determination on the amount of Susi’s claim against Mailath arising out of these transactions. Notice is hereby given that this Court will conduct a hearing at 10:30 a.m. on the 19th day of December, 1989, to determine that issue. . Oklahoma statutory law governing general partners does not create the requisite trust relationship. Title 54 O.S. § 221 requires that every partner hold \"as trustee\" for the partnership “any profits derived by him without the consent of the other partners ...\" This statutory trust arises only when the partner derives profits without the consent of the other partners and not prior to the commission of any wrongful act and therefore does not create the requisite trust relationship under 11 U.S.C. § 523(a)(4). See" }, { "docid": "10183277", "title": "", "text": "See e.g. Moreno v. Ashworth, 892 F.2d 417, 421 (5th Cir.1990) (officer of a corporation owed common law fiduciary duty to corporation and stockholders sufficient' to satisfy requirements of section 523(a)(4)); Lewis v. Short (In re Short), 818 F.2d 693, 695-96 (9th Cir.1987) (Washington common law imposed trustee-like duties on partners of partnership); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986) (California common law imposed trustee-like duties on all partners of a partnership); Carey Lumber Company v. Bell, 615 F.2d 370, 374 (5th Cir.1980) (Oklahoma Lien Trust statutes created an express trust). Thus, the trust obligations necessary under section 523(a)(4) can arise pursuant to a statute, common law or a formal trust agreement. 2. Fiduciary Duties of Managing Partners Under Texas Law. The controlling law in this case is Texas law. Therefore, this Court must look to Texas law in order to determine what obligations are imposed on the managing general partner of a limited partnership with respect to the limited partners. The Court must then decide whether the obligations imposed under state law are sufficient to meet the federal law requirements of “fiduciary capacity” under section 523(a)(4). In addressing this issue, both the bankruptcy court and the district court below referred to and relied on the case of In re Hurbace, 61 B.R. 563 (Bankr.W.D.Tex. 1986). In that case, involving a general partnership, the court addressed the issue of whether the debtor should be denied a discharge under section 523(a)(4) for a judgment entered against him in state court for his failure to account to one of his former partners for certain partnership funds. Id. at 564-65. The Hurbace court looked to the Texas version of the Uniform Partnership Act (UPA), in order to determine whether the requisite trust relationship existed for purposes of section 523(a)(4). The court focused on the following language: Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use" }, { "docid": "4660537", "title": "", "text": "his capacity as partner, was a “trustee ... held to something stricter than the morals of the market place.” Mailath, at 810, quoting Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (1928). See also Oklahoma Company v. O’Neil, 440 P.2d 978, 984 (Okl.1968); Knapp v. First Nat. Bank & Trust Co. of Oklahoma City, 154 F.2d 395, 398 (10th Cir.1946); Hatten v. Interocean Oil Co., 182 Okl. 465, 78 P.2d 392, 397 (1938); Thomas v. Mathis, 181 Okl. 1, 72 P.2d 484, 486 (1937). 17. In addition to evincing the requisite intent to create a trust relationship between general partners, Oklahoma common law, as set forth in the cases cited above, creates a trust res consisting of the assets of the partnership and also imposes various trust duties, such as the duty of utmost good faith and the duty of a managing partner to render full, exact, and true accounts of all transactions to his partner or partners. 18. In Tindale v. Blatnik, 101 B.R. 718, 721, the Bankruptcy Court for the Eastern District of Oklahoma has concluded that Oklahoma common law creates the requisite trust relationship between general partners under § 523(a)(4). Furthermore, the Ninth Circuit Court of Appeals, construing similar common law in California and Washington, has determined that such laws create the requisite trust relationship between general partners or joint venturers under § 523(a)(4). See Ragsdale v. Haller, 780 F.2d 794, 796-797 (9th Cir.1986); Lewis v. Short, 818 F.2d 693, 695 (9th Cir.1987). The Court agrees with the reasoning of these cases and holds that Mailath was acting in a fiduciary capacity with respect to Susi in regard to partnership matters. 19. Finally, the evidence clearly and convincingly indicates that Mailath induced Susi to enter into the debt by fraud. Fraud within the meaning of § 523(a)(4) consists of positive, intentional misrepresentation or falsehood. In re Katzen, 47 B.R. 738, 742 (Bankr.D.Mass.1985). By intentionally misrepresenting the true nature of the notes and the partnership’s financial status, Mai-lath perpetrated a fraud on Susi and breached his fiduciary duty. The Court finds that Susi would not have" }, { "docid": "11777817", "title": "", "text": "Marriott, which had substantially the same HVAC system design as the Greens-point Marriott, had begun to experience similar mildew problems. . See, e.g., Lewis v. Short (In re Short), 818 F.2d 693, 695-96 (9th Cir.1987) (Washington law); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir. 1986) (California law); Longo v. McLaren (In re McLaren), 136 B.R. 705, 714 (Bankr.N.D. Ohio 1992); Gravel v. Chris J. Roy, A Law Corp. (In re Chris J. Roy), 130 B.R. 214 (Bankr.W.D.La.1991); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991); Getaz v. Stewart (In re Stewart), 123 B.R. 817 (Bankr.W.D.Tenn.1991); Braun v. McKay (In re McKay), 110 B.R. 764 (Bankr.W.D.Pa.1990); Susi v. Mailath (In re Mailath), 108 B.R. 290, 293-94 (Bankr.N.D.Okla.1989); In re Guy, 101 B.R. 961, 986-91 (Bankr.N.D.Ind.1988) In re Cramer, 93 B.R. 764, 767-68 (M.D.Fla.1988) Lee v. Crosswhite (In re Crosswhite), 91 B.R. 156 (Bankr.M.D.Fla. 1988); Stone v. Stone (In re Stone), 90 B.R. 71, 79-80 (Bankr.S.D.N.Y.), aff'd, 94 B.R. 298, 302-03 (S.D.N.Y.1988), aff'd, 880 F.2d 1318 (2nd Cir.1989); In re Dino, 82 B.R. 184, 186 (Bankr. D.R.I.1988); In re Owens, 54 B.R. 162, 164-65 (Bankr.D.S.C.1984); In re Kraus, 37 B.R. 126, 129 (Bankr.E.D.Mich.1984). See also In re Weiner, 95 B.R. 204, 206-07 (Bankr.D.Kansas 1989) (although no fiduciary relationship between partners generally, the sole managing partner had responsibilities commonly associated with trustee and was therefore a fiduciary under section 523(a)(4)); In re Hurbace, 61 B.R. 563, 565-66 (Bankr.W.D.Tex.1986) (holding that there was insufficient fiduciary relationship between equal copartners to meet requirements of section 523(a)(4), but indicating, in dicta, that managing partner's fiduciary duties probably sufficient). . Rolley v. Spector (In re Spector), 133 B.R. 733 (Bankr.E.D.Penn.1991); Blashke v. Standard (In re Standard), 123 B.R. 444 (Bankr.N.D.Ga.1991); Sulphur Partnership v. Piscioneri (In re Piscioneri), 108 B.R. 595 (Bankr.N.D.Ohio 1989); Stahl v. Lang (In re Lang), 108 B.R. 586 (Bankr.N.D.Ohio 1989); Coleman v. Choisnard (In re Choisnard), 98 B.R. 37 (Bankr.N.D.Okl.1989); Medved v. Novak, (In re Novak), 97 B.R. 47 (Bankr.D.Kan.1987); In re Lewis, 94 B.R. 406, 410 (Bankr.E.D.Va.1988); In re Stone, 91 B.R. 589, 594 (D.Utah 1988); Dreyfoos v. Ryan" }, { "docid": "4660535", "title": "", "text": "is a debt from Mailath to Susi in an amount yet to be determined based upon Mailath’s mis representations to Susi in obtaining Susi’s signature on the various notes. 13. The Court holds that Mailath’s debt to Susi’s cannot be excepted from discharge under § 523(a)(2)(A) or (B). In this case, the false representations made were oral and were made in regard to Mailath’s financial condition or the financial condition of an insider, the partnership. False representations about your own financial condition or that of a insider must be in writing to form the basis of a nondis-chargeable debt under § 523(a)(2). 14. However, the Court holds that the debt of Mailath to Susi is excepted from discharge under § 523(a)(4) because such debt is for fraud while acting in a fiduciary capacity. 15. An express or technical trust, arising by agreement or by state law prior to the commission of any wrongful act, must exist between the parties to create the requisite fiduciary capacity under § 523(a)(4). Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); In re Romero, 535 F.2d 618 (10th Cir.1976); In re Black, 787 F.2d 503 (10th Cir.1986). While federal law defines “fiduciary capacity”, state law may impose a trust relationship sufficient to constitute “fiduciary capacity” for the purposes of § 523(a)(4). Romero at 621; Black at 506. This Court has previously held that the elements of such a trust are the intent to create a trust, a clearly defined trust res, and specific trust duties. In re Stefanoff, 97 B.R. 607, 609 (Bankr.N.D.Okl.1989). 16. Oklahoma common law clearly evinces an intent that general partners act as trustee for one another and this relationship is imposed from the inception of the partnership and not from any act of wrongdoing. Ironically, the strongest statement of Oklahoma law on this issue is found in Application of Mailath, 752 P.2d 803, 809-810 (Okl.1988), wherein the Oklahoma Supreme Court upheld the Oklahoma Board of Bar Examiners’ rejection of Mailath’s application for admission to the bar. The Court there expressly stated that Mailath, in" }, { "docid": "16639198", "title": "", "text": "utmost good faith and duty to render full, exact, and true accounting imposes technical trust relationship sufficient for § 523(a)(4) as well as creating a trust res consisting of the assets of the partnership); Tindale v. Blatnik (In re Tindal, e)101 B.R. 718, 721 (Bankr.E.D.Okla.1989) (Oklahoma common law imposing upon partners an obligation of utmost good faith and integrity with respect to partnership affairs imposed fiduciary duty under § 523(a)(4)); with Stone, 91 B.R. at 593-94 (partner's general fiduciary duty is not sufficient to create an express or technical trust required under § 523(a)(4)); Kayes v. Klippel (In re Klippel), 183 B.R. 252, 260 (Bankr.D.Kan.1995) (the fiduciary duty of a partner generally will not support exception from discharge under § 523(a)(4)); Tway v. Tway (In re Tway), 161 B.R. 274, 280-81 (Bankr.W.D.Okla.1993) (fiduciary relationship under § 523(a)(4) must arise from express trust or technical trust imposed by statute that establishes a trust relationship prior to any wrongdoing by the debtor-fiduciary). . The Tenth Circuit relied upon the ruling in Evans v. Pollard (In re Evans), 161 B.R. 474 (9th Cir. BAP 1993), as instructive authority. In Evans, a case dealing with whether a real estate broker qualified as a fiduciary under either California statutes and administrative regulations or case law, the Ninth Circuit Bankruptcy Appellate Panel decided that, while there was no question that the relationship between the parties fell within the broad general definition of a fiduciary relationship and the broker had the same obligation of undivided service and loyalty that a trust imposes on a trustee, a failure to fulfill a general fiduciary obligation in the absence of an identifiable trust res did not qualify as a trust relationship for purposes of § 523(a)(4). . In the absence of a written contract, the best that can be said is that by the jury instruction relating to breach of fiduciary duty, the state court may have intended to impose a resulting trust on the funds the Debtor collected from the liquidation of accounts receivable. A resulting trust does not give rise to the kind of fiduciary duty contemplated by" }, { "docid": "11440652", "title": "", "text": "benefit of another was not acting in a fiduciary capacity under the Chapman doctrine, is one acting in a fiduciary capacity who enters into a contract with buyers and receives money outright to build a house? The question is susceptible to only one answer: No. It would seem obvious that the relationship between a homebuilder and homebuyer is not analogous to those of attorney and client, guardian and ward, trustee and beneficiary, or public officer and constituent. The latter are fiduciaries in fact while the former is not. There is no evidence in this case that the funds paid by Mr. and Mrs. Spinoso to Mr. Heilman were entrusted by them to him. Many opinions, in effect, have permitted State courts and legislatures to overrule Chapman v. Forsyth and restrict the class of debtors to whom a bankruptcy discharge is available by deferring to the State law of fiduciaries. This was the criticism leveled by the late Judge James Yacos in the case of BAMCO 18 v. Reeves (In re Reeves), 124 B.R. 5 (Bankr.D.N.H.1990), when he opined: I realize that many lower court decisions [after] the Davis decision have in effect ignored the Supreme Court’s teaching regarding technical and express trusts. Currently, a majority of the decisions simply look to state law to see if some fiduciary obligation in a generalized sense has been created. Once that is established, these courts essentially assume the federal definition is the same. See, e.g., Ragsdale v. Haller (In re Ragsdale), 780 F.2d 794, 796-97 (9th Cir.1986) (“California has made all partners trustees over the assets of the partnership. Accordingly, we hold that California partners are fiduciaries within the meaning of § 523(a)(4)”); See also In re Short, 818 F.2d 693 (9th Cir.1987) (Washington law); In re Mailath, 108 B.R. 290 (Bankr.N.D.Okla.1989); In re Blatnik, 101 B.R. 718 (Bankr.E.D.Okla.1989); In re Selenske, 103 B.R. 200 (Bankr.E.D.Wis.1989); In re Guy, 101 B.R. 961 (Bankr.N.D.Ind.1988); In re Crosswhite, 91 B.R. 156 (Bankr.M.D.Fla.1988) (North Carolina law); In re Dino, 82 B.R. 184 (Bankr.D.R.I.1988); In re Owens, 54 B.R. 162 (Bankr.D.S.C.1984); In re Kraus, 37 B.R. 126" }, { "docid": "4660536", "title": "", "text": "328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); In re Romero, 535 F.2d 618 (10th Cir.1976); In re Black, 787 F.2d 503 (10th Cir.1986). While federal law defines “fiduciary capacity”, state law may impose a trust relationship sufficient to constitute “fiduciary capacity” for the purposes of § 523(a)(4). Romero at 621; Black at 506. This Court has previously held that the elements of such a trust are the intent to create a trust, a clearly defined trust res, and specific trust duties. In re Stefanoff, 97 B.R. 607, 609 (Bankr.N.D.Okl.1989). 16. Oklahoma common law clearly evinces an intent that general partners act as trustee for one another and this relationship is imposed from the inception of the partnership and not from any act of wrongdoing. Ironically, the strongest statement of Oklahoma law on this issue is found in Application of Mailath, 752 P.2d 803, 809-810 (Okl.1988), wherein the Oklahoma Supreme Court upheld the Oklahoma Board of Bar Examiners’ rejection of Mailath’s application for admission to the bar. The Court there expressly stated that Mailath, in his capacity as partner, was a “trustee ... held to something stricter than the morals of the market place.” Mailath, at 810, quoting Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (1928). See also Oklahoma Company v. O’Neil, 440 P.2d 978, 984 (Okl.1968); Knapp v. First Nat. Bank & Trust Co. of Oklahoma City, 154 F.2d 395, 398 (10th Cir.1946); Hatten v. Interocean Oil Co., 182 Okl. 465, 78 P.2d 392, 397 (1938); Thomas v. Mathis, 181 Okl. 1, 72 P.2d 484, 486 (1937). 17. In addition to evincing the requisite intent to create a trust relationship between general partners, Oklahoma common law, as set forth in the cases cited above, creates a trust res consisting of the assets of the partnership and also imposes various trust duties, such as the duty of utmost good faith and the duty of a managing partner to render full, exact, and true accounts of all transactions to his partner or partners. 18. In Tindale v. Blatnik, 101 B.R. 718, 721, the Bankruptcy Court for the Eastern" }, { "docid": "4660534", "title": "", "text": "the parties and the basic issues therein were whether the debt of Mailath to Siisi is excepted from discharge under 11 U.S.C. §§ 523(a)(2)(A) and (B) and 523(a)(4) which are as follows: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— s}: jjs jjc * * ‡ (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider’s financial condition— (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive; or (4) [constituting] fraud or defalcation while acting in a fiduciary capacity.... 12. The Court first holds that there is a debt from Mailath to Susi in an amount yet to be determined based upon Mailath’s mis representations to Susi in obtaining Susi’s signature on the various notes. 13. The Court holds that Mailath’s debt to Susi’s cannot be excepted from discharge under § 523(a)(2)(A) or (B). In this case, the false representations made were oral and were made in regard to Mailath’s financial condition or the financial condition of an insider, the partnership. False representations about your own financial condition or that of a insider must be in writing to form the basis of a nondis-chargeable debt under § 523(a)(2). 14. However, the Court holds that the debt of Mailath to Susi is excepted from discharge under § 523(a)(4) because such debt is for fraud while acting in a fiduciary capacity. 15. An express or technical trust, arising by agreement or by state law prior to the commission of any wrongful act, must exist between the parties to create the requisite fiduciary capacity under § 523(a)(4). Davis v. Aetna Acceptance Co., 293 U.S." }, { "docid": "16639181", "title": "", "text": "by § 523(a)(4). In the Summary Judgment Order, the bankruptcy court based its ruling against Holaday on the holding in Tway v. Tway (In re Tway), 161 B.R. 274 (Bankr.W.D.Okla.1993), a ease decided prior to Fowler Bros., but consistent with the later Tenth Circuit ruling. The holding in Tway is at odds not only with the Colorado courts’ holdings in Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991) and Cundy v. Woods (In re Woods), 175 B.R. 78, 83-84 (Bankr.D.Colo.1994), but also with the Oklahoma bankruptcy courts in Susi v. Mailath (In re Mailath), 108 B.R. 290, 293 (Bankr.N.D.Okla.1989), and Tindale v. Blatnik (In re Blatnik), 101 B.R. 718, 721 (Bankr.E.D.Okla.1989). In both Mailath and Blatnik, the bankruptcy courts found that an Oklahoma common law duty of utmost good faith between partners creates a fiduciary relationship between partners or joint venturers sufficient for § 523(a)(4). Although there may have been inconsistent treatment of partners and joint venturers in Oklahoma cases under § 523(a)(4) prior to the ruling in Fowler Bros., the ruling in Tway is consistent with Fowler Bros., which is the most recent and controlling Tenth Circuit decision regarding the sufficiency of a trust relationship for purposes of § 523(a)(4). The Tenth Circuit stated “[njeither a general fiduciary duty of confidence, trust, loyalty, and good faith, nor an inequality between the parties’ knowledge or bargaining power, is sufficient to establish a fiduciary relationship for purposes of dischargeability.” Fowler Bros., 91 F.3d at 1372 (citations omitted). Even though the Oklahoma state courts may approve of a general policy that creates a fiduciary duty between joint venturers, this policy is not sufficient to fulfill the Tenth Circuit’s requirements of a common law trust for purposes of § 523(a)(4). Accordingly, Holaday has not met his burden of showing the existence of a fiduciary relationship required under § 523(a)(4). Because this element has not been proyen, this court need not address whether fraud or defalcation was committed. 3. Holaday did not Establish the Existence of a Trust Res. In addition to failing to prove the existence of an express or technical" }, { "docid": "16639197", "title": "", "text": "Weiner, 95 B.R. 204 (Bankr.D.Kan.1989) (UPA does not create fiduciary relationship); see also Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986). . See In re Mailath, 752 P.2d 803, 809-10 (Okla.1988) (partner was a trustee \"held to something stricter than the morals of the market place”-); Oklahoma Co. v. O’Neil, 440 P.2d 978, 984 (Okla.1968) (citing cases) (partner or joint adventurer occupies fiduciary position with-respect to other members and owes higher and greater duty to them than he owes to one with whom he deals at arm's length); Clark v. Addison, 311 P.2d 256 (Okla.1957) (the same general rules apply to both joint adventures and partnerships in dissolution and accounting between the parties). .Compare Cundy v. Woods (In re Woods), 175 B.R. 78, 83-84 (Bankr.D.Colo.1994) (joint ven-turers were fiduciaries under Colorado law); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351, 353 (D.Colo.1991) (Colorado common law imposes a technical trust on partners thereby meeting the requirements of § 523(a)(4)); Susi v. Mailath (In re Mailath), 108 B.R. 290, 293 (Bankr.N.D.Okla.1989) (Oklahoma common law requiring utmost good faith and duty to render full, exact, and true accounting imposes technical trust relationship sufficient for § 523(a)(4) as well as creating a trust res consisting of the assets of the partnership); Tindale v. Blatnik (In re Tindal, e)101 B.R. 718, 721 (Bankr.E.D.Okla.1989) (Oklahoma common law imposing upon partners an obligation of utmost good faith and integrity with respect to partnership affairs imposed fiduciary duty under § 523(a)(4)); with Stone, 91 B.R. at 593-94 (partner's general fiduciary duty is not sufficient to create an express or technical trust required under § 523(a)(4)); Kayes v. Klippel (In re Klippel), 183 B.R. 252, 260 (Bankr.D.Kan.1995) (the fiduciary duty of a partner generally will not support exception from discharge under § 523(a)(4)); Tway v. Tway (In re Tway), 161 B.R. 274, 280-81 (Bankr.W.D.Okla.1993) (fiduciary relationship under § 523(a)(4) must arise from express trust or technical trust imposed by statute that establishes a trust relationship prior to any wrongdoing by the debtor-fiduciary). . The Tenth Circuit relied upon the ruling in Evans v. Pollard (In re Evans)," }, { "docid": "4660539", "title": "", "text": "entered into the debt were it not for the fraudulent representations of Mailath. 20. Accordingly, the debt of Susi was incurred as a result of Mailath’s fraud while acting in a fiduciary capacity and such debt is excepted from discharge under § 523(a)(4). 21. The Court reserves for a later hearing the determination on the amount of Susi’s claim against Mailath arising out of these transactions. Notice is hereby given that this Court will conduct a hearing at 10:30 a.m. on the 19th day of December, 1989, to determine that issue. . Oklahoma statutory law governing general partners does not create the requisite trust relationship. Title 54 O.S. § 221 requires that every partner hold \"as trustee\" for the partnership “any profits derived by him without the consent of the other partners ...\" This statutory trust arises only when the partner derives profits without the consent of the other partners and not prior to the commission of any wrongful act and therefore does not create the requisite trust relationship under 11 U.S.C. § 523(a)(4). See Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986)." }, { "docid": "16639195", "title": "", "text": "areas of testimony complained of by Holaday are contradictory or confusing, in part, because the questions asked the Debtor did not require precise answers. Therefore, the answers given are subject to reasonable and differing interpretations. The interpretation of the bankruptcy court, and the conclusions drawn from such interpretation, were not clearly erroneous. III. CONCLUSION Based upon the foregoing, this court determines the Summary Judgment Order granting the Debtor’s cross-motion for summary judgment on the § 523(a)(4) claim for relief, and the Judgment dismissing the § 727(a)(2)(A) and § 727(a)(4)(A) claims, are AFFIRMED. . Future references are to Title 11 of the United States Code unless otherwise noted. . Section 523(a)(4) provides: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny . Section 727(a)(2)(A) and Section 727(a)(4)(A) provide: (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account_ . Courts of the Tenth Circuit have uniformly held that the UPA does not create the kind of fiduciary relationship required by § 523(a)(4). Novak, 97 B.R. at 59 (UPA only creates a trust after the partners derive profits without the consent of the partnership, and the trust created is therefore that sort of trust ex maleficio which is not included within the purview of § 523(a)(4)); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991) (UPA does not create fiduciary relationship); Susi v. Mailath (In re Mailath), 108 B.R. 290 (Bankr.N.D.Okla.1989) (Oklahoma statutory law governing general partners does not create the requisite trust relationship); In re" }, { "docid": "10183302", "title": "", "text": "the pressure. . The record indicates that, prior to completion of the hotel, in November of 1980, Bennett was made aware that another Marriott hotel, the Brookhollow Marriott, which had substantially the same HVAC system design as the Greens-point Marriott, had begun to experience similar mildew problems. .See, e.g., Lewis v. Short (In re Short), 818 F.2d 693, 695-96 (9th Cir.1987) (Washington law); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir. 1986) (California law); Longo v. McLaren (In re McLaren), 136 B.R. 705, 714 (Bankr.N.D.Ohio 1992); Gravel v. Chris J. Roy, A Law Corp. (In re Chris J. Roy), 130 B.R. 214 (Bankr.W.D.La. 1991); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991); Getaz v. Stewart (In re Stewart), 123 B.R. 817 (Bankr.W.D.Tenn.1991); Brown v. McKay (In re McKay), 110 B.R. 764 (Bankr.W.D.Pa.1990); Susi v. Mailath (In re Mailath), 108 B.R. 290, 293-94 (Bankr. N.D.Okla.1989); In re Guy, 101 B.R. 961, 986-91 (Bankr.N.D.Ind.1988) In re Cramer, 93 B.R. 764, 767-68 (M.D.Fla.1988) Lee v. Crosswhite (In re Crosswhite), 91 B.R. 156 (Bankr.M.D.Fla.1988); Stone v. Stone (In re Stone), 90 B.R. 71, 79-80 (Bankr.S.D.N.Y.), aff'd, 94 B.R. 298, 302-03 (S.D.N.Y.1988), aff’d, 880 F.2d 1318 (2nd Cir. 1989); In re Dino, 82 B.R. 184, 186 (Bankr.D.R.I. 1988); In re Owens, 54 B.R. 162, 164-65 (Bankr. D.S.C.1984); In re Kraus, 37 B.R. 126, 129 (Bankr.E.D.Mich.1984). See also In re Weiner, 95 B.R. 204, 206-07 (Bankr.D.Kansas 1989) (although no fiduciary relationship between partners generally, the sole managing partner had responsibilities commonly associated with trustee and was therefore a fiduciary under section 523(a)(4)); In re Hurbace, 61 B.R. 563, 565-66 (Bankr.W.D.Tex.1986) (holding that there was insufficient fiduciary relationship between equal copartners to meet requirements of section 523(a)(4), but indicating, in dicta, that managing partner’s fiduciary duties probably sufficient). . Rolley v. Spector (In re Spector), 133 B.R. 733 (Bankr.E.D.Penn.1991); Blashke v. Standard (In re Standard), 123 B.R. 444 (Bankr.N.D.Ga.1991); Sulphur Partnership v. Piscioneri (In re Piscioneri), 108 B.R. 595 (Bankr.N.D.Ohio 1989); Stahl v. Lang (In re Lang), 108 B.R. 586 (Bankr. N.D.Ohio 1989); Coleman v. Choisnard (In re Choisnard), 98 B.R. 37 (Bankr.N.D.Okl.1989); Medved" }, { "docid": "11777797", "title": "", "text": "partners. Therefore, the statute would fall within the ambit of a trust ex maleficio specifically excluded from the purview of nondischargeable debts under § 523(a)(4).” In re Hurbace, 61 B.R. at 566. The Hurbace court’s interpretation of the UPA is in accord with those decisions cited above in which this UPA provision has been held not to satisfy the require ments. of section 523(a)(4). See e.g., Medved v. Novak, (In re Novak), 97 B.R. 47 (Bankr.D.Kan.1987). Only one circuit court has addressed the issue of the fiduciary obligations of a partner in the context of a section 523(a)(4) claim. In the case of Ragsdale v. Haller, 780 F.2d 794 (9th Cir.1986), the Ninth Circuit held that, under California law, the partners in a partnership did owe one another the type of fiduciary duty contemplated by section 523(a)(4). Id., at 796-97. The court found that, while the California partnership statute only created a trust ex maleficio, the California state courts had imposed additional duties on the partners in a partnership: In California, partners are trustees for each other and in all proceedings connected with the conduct of the partnership every partner is bound to act in the highest good faith to his co-partner and may not obtain any advantage over him in the partnership affairs by the slightest misrepresentation, concealment, threat or adverse pressure of any kind. Id. at 796. (Quoting Leff v. Gunter, 33 Cal.3d 508, 514, 189 Cal.Rptr. 377, 381, 658 P.2d 740, 744 (1983)). The court concluded that the obligations imposed by the California courts were “more than just a fiduciary relationship created in response to some wrongdoing; California has made all partners trustees over the assets of the partnership.” Id. As a result, the court held that the debtor’s debt to his partner was not dischargeable. Id. The Hurbace court declined to follow the Ragsdale decision, finding that the Texas courts had not imposed the same type of fiduciary duties on partners as the California courts. In re Hurbace, 61 B.R. at 566. The court observed that: It is only when viewing the position of managing partners" }, { "docid": "16639196", "title": "", "text": "officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account_ . Courts of the Tenth Circuit have uniformly held that the UPA does not create the kind of fiduciary relationship required by § 523(a)(4). Novak, 97 B.R. at 59 (UPA only creates a trust after the partners derive profits without the consent of the partnership, and the trust created is therefore that sort of trust ex maleficio which is not included within the purview of § 523(a)(4)); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991) (UPA does not create fiduciary relationship); Susi v. Mailath (In re Mailath), 108 B.R. 290 (Bankr.N.D.Okla.1989) (Oklahoma statutory law governing general partners does not create the requisite trust relationship); In re Weiner, 95 B.R. 204 (Bankr.D.Kan.1989) (UPA does not create fiduciary relationship); see also Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986). . See In re Mailath, 752 P.2d 803, 809-10 (Okla.1988) (partner was a trustee \"held to something stricter than the morals of the market place”-); Oklahoma Co. v. O’Neil, 440 P.2d 978, 984 (Okla.1968) (citing cases) (partner or joint adventurer occupies fiduciary position with-respect to other members and owes higher and greater duty to them than he owes to one with whom he deals at arm's length); Clark v. Addison, 311 P.2d 256 (Okla.1957) (the same general rules apply to both joint adventures and partnerships in dissolution and accounting between the parties). .Compare Cundy v. Woods (In re Woods), 175 B.R. 78, 83-84 (Bankr.D.Colo.1994) (joint ven-turers were fiduciaries under Colorado law); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351, 353 (D.Colo.1991) (Colorado common law imposes a technical trust on partners thereby meeting the requirements of § 523(a)(4)); Susi v. Mailath (In re Mailath), 108 B.R. 290, 293 (Bankr.N.D.Okla.1989) (Oklahoma common law requiring" }, { "docid": "20605994", "title": "", "text": "a defined term under the Bankruptcy Code § 101(14A) . There is an exception to this rule. If a debtor is awarded a hardship discharge under 11 U.S.C. § 1328(b), all debts that fall within § 523(a) are nondischargeable. § 1328(c)(2). No hardship discharge has been sought in this case. . Unlike § 523(a)(15) debts, § 1328(a) makes clear that § 523(a)(4) debts are excepted from a chapter 13 discharge. . This Court heard testimony that the only business still in operation at the time of the divorce was H & H. . Those courts finding that a fiduciary duty is owed includes: See, e.g., Lewis v. Short (In re Short), 818 F.2d 693, 695-96 (9th Cir.1987) (Washington law); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986) (California law); Longo v. McLaren (In re McLaren), 136 B.R. 705, 714 (Bankr.N.D.Ohio 1992); Gravel v. Chris J. Roy, A Law Corp. (In re Chris I. Roy), 130 B.R. 214 (Bankr.W.D.La.1991); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991); Getaz v. Stewart (In re Stewart), 123 B.R. 817 (Bankr.W.D.Tenn.1991); Brown v. McKay (In re McKay), 110 B.R. 764 (Bankr.W.D.Pa.1990); Susi v. Mailath (In re Mailath), 108 B.R. 290, 293-94 (Bankr. N.D.Okla.1989); In re Guy, 101 B.R. 961, 986-91 (Bankr.N.D.Ind.1988); In re Cramer, 93 B.R. 764, 767-68 (Bankr.M.D.Fla.1988) Lee v. Crosswhite (In re Crosswhite), 91 B.R. 156 (Bankr.M.D.Fla.1988); Stone v. Stone (In re Stone), 90 B.R. 71, 79-80 (Bankr.S.D.N.Y.), aff'd, 94 B.R. 298, 302-03 (S.D.N.Y.1988), aff'd, 880 F.2d 1318 (2nd Cir.1989); In re Dino, 82 B.R. 184, 186 (Bankr.D.R.I.1988); In re Owens, 54 B.R. 162, 164-65 (Bankr. D.S.C.1984); In re Kraus, 37 B.R. 126, 129 (Bankr.E.D.Mich.1984). See also In re Weiner, 95 B.R. 204, 206-07 (Bankr.D.Kan.1989) (although no fiduciary relationship between partners generally, the sole managing partner had responsibilities commonly associated with trustee and was therefore a fiduciary under section 523(a)(4)); In re Hurbace, 61 B.R. 563, 565-66 (Bankr.W.D.Tex.1986) (holding that there was insufficient fiduciary relationship between equal copartners to meet requirements of section 523(a)(4), but indicating, in dicta, that managing partner’s fiduciary duties probably sufficient). Those Courts finding that no" }, { "docid": "16639180", "title": "", "text": "by federal law for purposes of § 523(a)(4), applies only to technical trusts, and not those that the law implies at contract. Fowler Bros., 91 F.3d at 1377; Allen v. Romero (In re Romero), 535 F.2d 618, 621 (10th Cir.1976) (statute imposed fiduciary duty under § 17(a)(4) of the Bankruptcy Act, the predecessor to § 523(a)(4), on contractor who had been advanced money to pay subcontractors pursuant to construction contract). In this case, there is no express written agreement that establishes a fiduciary relationship. Neither can Holaday point to a fiduciary relationship arising from an Oklahoma statute because the Oklahoma version of the Uniform Partnership Act (UPA) does not impose a trust relationship on joint venturers sufficient to satisfy § 523(a)(4). Under these circumstances, Holaday turns to Oklahoma common law for creation of a fiduciary relationship between members of a joint venture. Lower court opinions in the Tenth Circuit issued prior to Fowler Bros, were divided on the issue of whether the partners in a common law partnership or joint venture were fiduciaries as required by § 523(a)(4). In the Summary Judgment Order, the bankruptcy court based its ruling against Holaday on the holding in Tway v. Tway (In re Tway), 161 B.R. 274 (Bankr.W.D.Okla.1993), a ease decided prior to Fowler Bros., but consistent with the later Tenth Circuit ruling. The holding in Tway is at odds not only with the Colorado courts’ holdings in Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991) and Cundy v. Woods (In re Woods), 175 B.R. 78, 83-84 (Bankr.D.Colo.1994), but also with the Oklahoma bankruptcy courts in Susi v. Mailath (In re Mailath), 108 B.R. 290, 293 (Bankr.N.D.Okla.1989), and Tindale v. Blatnik (In re Blatnik), 101 B.R. 718, 721 (Bankr.E.D.Okla.1989). In both Mailath and Blatnik, the bankruptcy courts found that an Oklahoma common law duty of utmost good faith between partners creates a fiduciary relationship between partners or joint venturers sufficient for § 523(a)(4). Although there may have been inconsistent treatment of partners and joint venturers in Oklahoma cases under § 523(a)(4) prior to the ruling in Fowler Bros., the ruling in" } ]

[ { "docid": "3045902", "title": "", "text": "28 U.S.C. § 1447(c), Kisor filed her present motion, pointing out that the notice of removal did not contain a copy of the summons served on Millis and did not contain copies of either return on service. On this basis, Kisor insists that defendants have failed to meet one of the mandatory prerequisites for effective removal set forth in 28 U.S.C. § 1446(a), namely, that all “process” be included. Upon receiving Kisor’s motion to remand, Collins and Millis not only oppose it, arguing that their procedural error was merely technical and thus innocuous, but they purport to amend their notice of removal to add a copy of the state court summons that was served on Millis and a copy of the return of service on him. Defendants still have not provided a copy of the return of service on Collins. Kisor understandably relies on Burnett v. Birmingham Bd. of Educ., 861 F.Supp. 1036 (N.D.Ala.1994), a case decided by this court. This court confesses to have been effusive with its obiter dicta, gratuitously drawing a roadmap that Kisor has here followed precisely. In Burnett, this court said: Plaintiffs’ motion [to remand] does not complain of a failure of the notice of removal to contain a copy of the summons served on the Board [defendant]. The absence of a copy of this “process” was a clear procedural defect under 28 U.S.C. § 1446(a) and one which would have been fatal if it had been raised by plaintiffs within the thirty (30) day period allowed by 28 U.S.C. § 1447(c). This defect has, however, been waived. Id. at 1037 When this court expressed its above-quoted view of what constitutes a fatal defect unless waived, this court was either right or wrong. If it was right, Kisor’s action must be remanded. If it was wrong, the court must admit its error and then consider whether the admitted procedural mistake committed here by defendants can be remedied post hoc by the amending of their notice of removal after plaintiff filed her motion to remand and after the thirty (30) day period for removal expired. Collins" } ]

[ { "docid": "22907461", "title": "", "text": "validity of the attempt to remove. See Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282, 284, 285, and cases cited. The former question was decided to be subject to review on error by this court in Shepard v. Adams, 168 U. S. 618. That case has not been overruled. The latter question was held also proper to be brought here, in Powers v. Chesapeake & Ohio Ry., 169 U. S. 92. The jurisdiction of this court must be sustained. Coming then to the motion to remand it is said that the petition to remove was filed too late, because the time for answer had expired. It would be a strong interpretation of the New York Code of Civil Procedure, § 418, to say that it requires an answer within twenty days after the summons when no complaint or even notice stating the sum of money for which judgment will be taken, § 419, has been served. See Dancel v. Goodyear Shoe Machinery Co., 106 Fed. Rep. 551. But it is a sufficient reply to the motion and to the objection to the removal that the petition was filed as soon as the case became a removable one. Powers v. Chesapeake & Ohio Ry., 169 U. S. 92; Kansas City Suburban Belt Ry. v. Herman, 187 U. S. 63, 67, 68. The suggestion that the defendant was estopped by the fact that it followed up its motion to stay in the state court in. accordance with its notice, on October 24, when the right to remove had been made to appear the day before, seems to us too technical, supposing it to be open here. Indeed it was a proper preliminary in one respect. The order made on that motion was “ that the defendant be relieved from any default in appearing herein, and that all proceedings on the part of the plaintiff be stayed, pending said appeal and until ten days after the decision thereof, except” an order for the examination of the plaintiff. It did not estop the defendant from insisting on a. substantial right" }, { "docid": "14028072", "title": "", "text": "states: A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State may thereupon proceed with such case. 28 U.S.C. § 1447(a). See Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir.2006)(“The statutory provision[ ] governing remands of cases removed to federal court [is] 28 U.S.C. § 1447(c)....”); RMP Consulting Group, Inc. v. Datronic Rental Corp., No. 98-5062, 1999 WL 617690, at *4 (10th Cir.l999)(applying 28 U.S.C. § 1447(a)). ANALYSIS The Mach Plaintiffs request that the Court remand this matter to the District Court of Dona Ana County, in which they originally filed this case. The Mach Plaintiffs advance three grounds for remand: (i) the removal is fatally defective, because Great American has violated 28 U.S.C. § 1446(b) in that a case may not be removed on the basis of jurisdiction conferred by 28 U.S.C. § 1332 more than one year after commencement of the action; (ii) the removal is fatally defective, because the other Defendants — the Cross-Claimants — did not consent to removal within the thirty-day limitation period set forth in 28 U.S.C. § 1446(a); and (iii) Great American, as Cross Defendant and Third-Party Defendant, is not a “defendant” under 28 U.S.C. § 1441(a). Cross-Claimants adopt these arguments, and further argue that Great American has submitted to state court jurisdiction by entering an appearance and filing a motion to dismiss in state court. Great American responds that the Cross-Claimants’ Cross-Claims are “a separate action,” Response to Mach Plaintiffs at 4, and that Great American seeks to remove only the Cross-Claims, asserting “that this" }, { "docid": "23423673", "title": "", "text": "court erred in denying his motion to remand his suit to the state court in which it was originally filed. The district court did not favor us with its specific reasons for denying Pavone’s motion; rather, it simply observed that the record did not warrant a remand. On appeal Pavone advances two points of error to support his claim that he was wrongly denied remand. a. Timeliness of Motion To Remand Pavone first claims that his motion to remand was timely made. We review the timeliness of a remand motion de novo. Section 1447(c) provides that a “motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under § 1446(a).” Pavone’s motion to remand was filed thirty-three days after the Riverboat Companies filed their notice of removal and mailed a copy of that notice to Pavone. He states that six days elapsed between the date the notice of the removal was filed and the date on which he received his copy in the mail. He contends therefore that (1) he could have filed a motion for enlargement of time or to have his pleading deemed timely filed, either of which motions the district court could have granted; and (2) § 1446(d) requires the removing party to provide “prompt” written notice, and due process requires that his (Pavone’s) motion be treated as timely under the circumstances of the mailing and delivery. Pavone also cites as persuasive authority Chott v. Cal Gas Corporation, a decision in which a district court in Missouri held timely a motion to remand which, like Pavone’s, was filed thirty-three days after the opposing party had filed and mailed its notice of removal. The Chott court found the motion timely by applying Federal Rules of Civil Procedure 6(e), which provides that “3 days shall be added to the prescribed period” whenever a party is required to “do some act” within a prescribed period “after the service of a notice or other paper upon the party and the notice is served" }, { "docid": "3045906", "title": "", "text": "F.Supp.2d, 1342 (M.D.Ala.2000), which recognizes both the potential jurisdictional fatality that inheres in a procedural defect in removal papers, and the ineffectiveness of a proffered corrective measure taken only in response to a timely jurisdictional challenge. As a court of limited jurisdiction, this court would be more than uncomfortable if it overlooked a jurisdictional defect about which a plaintiff has expressly complained just because the defect was inadvertent. There probably exists a procedural defect so hypertechnical and so innocuous that it can be overlooked, but this is not it. The jurisdictional statute that requires that “process” be contained in the notice of removal was enacted for a purpose. Statutes that limit federal jurisdiction are always strictly construed against the removing party, and there is no shame in a plaintiffs insistence on full and complete compliance with them by a defendant who wants to flee to federal court. It would indeed be ironic for Kisor to have taken the free advice dispensed by this court in Burnett, and then for this court to repudiate what it there said. When this court grants Kisor’s motion to remand, as it will do by separate order, it will not be doing so in order to avoid irony, but because procedural rules that govern the jurisdiction of federal courts are just as important to their jurisdiction as are substantive rules, and must be complied with. This belief is no longer dicta. Because defendants’ amendment to their notice of removal comes too late, it cannot be considered and cannot counter Kisor’s motion to remand. This means, of course, that the question of whether a return on service is an essential part of the “process” required by 28 U.S.C. § 1446(a), provocative as though that question may be, remains a question to be decided elsewhere. A separate order granting Kisor’s motion to remand will be entered." }, { "docid": "10098885", "title": "", "text": "time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case ....” 28 U.S.C. § 1447(c) (1964). This part of subsection (c) has twice been amended, although without alteration of the court’s duty to remand if there appears to be an absence of subject matter jurisdiction. In 1988, the quoted portion of the 1964 version of subsection (c) was divided into two sentences; the first dealt with procedural flaws in the removal process and limited the period within which a case may be remanded for such a flaw; the second dealt with subject matter jurisdiction and retained the requirement that a remand on the jurisdictional ground be ordered at any time before final judgment. As amended in 1988, the first sentence of subsection (c) stated that “[a] motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C. § 1447(c) (1988). See generally Hamilton v. Aetna Life & Casualty Co., 5 F.3d 642, 644 (2d Cir.1993) (“Hamilton ”) (court lacks authority under this version of § 1447(c) to grant an untimely motion for remand or to remand sua sponte on the basis of a procedural defect more than 30 days after filing of the § 1446(a) removal notice), cert. denied, 510 U.S. 1130, 114 S.Ct. 1100, 127 L.Ed.2d 413 (1994). The new second sentence of subsection (c), retaining the substance of the 1964 provision, stated that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c) (1988). This second sentence remains unaltered in the current version of the Code. See 28, U.S.C. § 1447(c) (2000). The language of subsection (e)’s first sentence was further amended in 1996 to make it crystal clear that the 30-day limitation for a remand motion based on a procedural defect does not limit remands for lack of subject matter jurisdiction. The 1996 amendment replaced the phrase" }, { "docid": "18712948", "title": "", "text": "fact, and the plaintiffs in each of these cases would be severely prejudiced by having the two cases joined together.” Pl.’s Resp. to Mot. for Consolidation at 2. Finally, Plaintiffs urge the Court to reserve any decision on the consolidation issue until after it decides the Motion to Remand. II. Discussion A. Motions to Remand The Court may remand a case only for the reasons stated in 28 U.S.C. § 1447(c), procedural defects or lack of subject matter jurisdiction. In this case, Plaintiffs seem to claim that the failure by National to remove within one year is a jurisdictional defect, though they do not focus on the “procedural” versus “jurisdictional” distinction in the substantive portions of their briefs. Late in their briefs, Plaintiffs do raise the jurisdictional issue indirectly, arguing “parenthetically” that no diversity jurisdiction exists in this case because, the amount in controversy is less than $50,000. Plaintiffs write: Pl.’s Mem. in Supp. of Mot. to Remand at 5. This argument by Plaintiffs is specious. Whether or not the lower court has approved Plaintiffs’ Motions to Amend, the Motions certainly constitute “other paper from which it may first be ascertained that the case is one which is or has become removable.... ” 28 U.S.C. § 1446(b). The Court therefore only gives critical consideration to Plaintiffs’ first argument, that removal was untimely, and that that untimeliness preempts federal jurisdiction over the cases. The questions for this Court are therefore twofold. First, was this action commenced when Plaintiffs filed their action, when the Defendant’s agent received service of process, or when the Defendant itself was notified of the service of process? Second, if Defendant’s removal petition was untimely filed, is failure to comply -with the one year removal provision in section 1446(b) an absolute bar to removal (i.e., is the one year limitation truly jurisdictional, or is it procedural and therefore subject to equitable considerations), even where the failure to comply is a result of blatant forum manipulation by the Plaintiff? [I]t should be noted that plaintiff has not increased his ad damnum in this case. He had only asked the" }, { "docid": "13045828", "title": "", "text": "“lack of subject matter jurisdiction” were not reviewable. grounds for remand. As amended, section 1447(c) now provides: A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). • If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. We recently applied Thermtron to section 1447(c) as amended and held that we have no jurisdiction “to vacate an order of remand based upon a timely section 1447(e) motion raising a defect in the removal procedure.” The issue before us today is whether a motion to remand based upon lack of removal jurisdiction under section 1441(c) raises a defect in removal procedure. Dolphin Titan contends that because the district court had to determine whether the Jones Act claim was separate and independent from the general maritime law claims, the. remand was based on a review of the merits, not upon a defect in removal procedure. Although the existence of removal jurisdiction may depend upon substantive matters, the absence of removal jurisdiction is a procedural defect for purposes of section 1447(c). “Thus, when section 1447(c) speaks of ‘any defect in removal procedure,’ it includes within its reach the bringing of an action not within the court’s removal jurisdiction but that could have been brought originally in that court.” There is no dispute that Hopkins’ claims are within the original subject matter jurisdiction of the federal district court. A Jones Act claim filed in state court, however, generally is not removable despite an independent basis of federal jurisdiction unless the Jones Act claim is joined with a separate and independent claim that is within our federal question jurisdiction. On the other hand, maritime claims may be removed to federal court by non-forum defendants when there is complete diversity of citizenship. Dolphin Titan removed on the basis that the Jones Act claim and the general maritime claims are separate and distinct and therefore removal was proper pursuant to 28 U.S.C. §" }, { "docid": "5787065", "title": "", "text": "28 U.S.C. § 1441(b) says that there are' only two possible grounds for Security’s removal: federal question jurisdiction or federal jurisdiction based on diversity of citizenship. Therefore, Security must, pursuant to' 28 U.S.C. § 1441(b), show this Court either the existence of a federal question or the parties’ diversity before this Court can accept Security’s removing the case here. 28 U.S.C. § 1446(a) requires that Security make that showing on the face of its Notice of Removal. The second statute at issue deals with timing. Specifically, 28 U .S.C. § 1446(b) says that Security must file its Notice of Removal within 30 days after it had received FHC’s motion for judgment. The questions raised in this case by these requirements are as follows: (1) Security failed to allege on the face of its Notice of Removal that Security had complied with the 30-day time limit of 28 U.S.C. § 1446(b). Is that failure fatal to Security’s attempt to remove? And (2) On its face, due to Security’s error in alleging its own state of incorporation, Security’s Notice of Removal does not show diversity between FHC and Security. May this Court grant Security leave to amend its Notice of Removal to correct the error and properly show diversity? It is to these questions that the Court now turns. It will first address Security’s failure to plead meeting 28 U.S.C. § 1446(b)’s 30-day requirement. II. Security’s Notice of Removal failed to state that Security filed it within the 30-day period after receipt of FHC’s Motion for Judgment. FHC maintains that Security’s failure to include this statement of compliance with the 30-day period is fatal to Security’s attempt to remove. FHC Options, Inc. v. Security Life Insurance Co. of America, No. 2:97CV1181, Plaintiffs Brief in Support of Remand, at 1 (E.D.Va. filed January 7,1998). In order to determine whether Security’s failure to plead that it met 28 U.S.C. § 1446(b)’s 30-day requirement requires remand, the Court again turns to 28 U.S.C. § 1446(a)’s requirements for a Notice of Removal’s contents. 28 U.S.C. § 1446(a) requires Security simply to plead the “grounds” for removal." }, { "docid": "1668992", "title": "", "text": "time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case.... ” 28 U.S.C. § 1447(c), amended by 28 U.S.C. § 1447(c) (1988) (emphasis added). The Judicial Improvements and Access to Justice Act amended § 1447(c) to read: A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c) (emphasis added). After the amendment, § 1447(c) appears to mandate remand only when the court finds that it lacks subject matter jurisdiction. Glover suggests that the district court may be able to exercise some discretion over whether remand should be ordered when the case suffers from only a procedural defect. Two recent pronouncements from the Fifth Circuit, however, question the validity of Glover. The first ease is Belser v. St. Paul Fire and Marine Ins. Co., 965 F.2d 5 (5th Cir. 1992). Belser involved a ease decided under old § 1447(c). In Belser, the defendants failed to timely file their notice of removal under § 1446(b). The district court denied the plaintiffs motion to remand, and rendered summary judgment in favor of the defendants. On appeal, the Fifth Circuit concluded that the removal was untimely, and that the plaintiff had timely filed its motion to remand. As a consequence the Fifth Circuit reversed the denial of the remand, vacated the summary judgment, and remanded the case to the district court with instructions to remand the ease to the Louisiana state court. Belser, 965 F.2d at 9. Belser, therefore, stands for the proposition that, under old § 1447(c), remand was mandatory upon a finding that a party has preserved a defect in removal procedure by timely filing a motion to remand. The second case is In re Medscope Marine, Ltd., 972 F.2d 107 (5th Cir.1992). In Medscope Marine, the court examined the legislative history" }, { "docid": "11333091", "title": "", "text": "defendants failed to allege corporate-defendant Taylor had not been served. Such an allegation was necessary. Such an omission makes the petition for removal fatally defective. § 1446(a) prescribes “a short and plain statement of the facts which entitle him or them to removal”. This requirement is a strict one. “It is essential” for the removal for proper allegations of fact to be set forth within the terms of the statute. The complaint filed in the Delaware Court of Chancery shows corporate-defendant Taylor was a resident of Delaware. In attempting to remove without joining this defendant, it was necessary to allege the corporate-defendant had not been served. The petition for removal failed to show compliance with the conditions of the statute, § 1441(a) and (b). The precise point was decided in Wright v. Missouri Pac. R. Co., 8 Cir., 98 F.2d 34. There, plaintiff brought action in a state court against three non-resident defendants. Two defendants removed the action to the federal court. The petition failed to show why third defendant had not been joined in the petition for removal. Plaintiff’s motion to remand was denied by the District Judge. On appeal, defendants attempted to sustain removal because third defendant had not been served with process at the time of removal. This argument was rejected. Moreover, individual defendants here attempted to show by affidavits filed 20 days after their general appearance and after the petition for removal that the corporate-defendant had not been served with process in the State Court at the time of removal. Such defect could not be cured by subsequent action, as is found here, to support the original petition for removal In the instant case, individual defendants’ petition for removal was defective and such defect can not be cured by filing affidavits long after the time limits for grounds for removal. The attempt to cure the defective original petition for removal came long after the time to file a petition for removal had expired. 3. Defendants’ main reliance for realignment of the Taylor Company as a corporate-plaintiff rests on Smith v. Sperling, D.C.S.D.Cal., 117 F.Supp. 781. Precise" }, { "docid": "1668991", "title": "", "text": "remand, pointing out Grainger’s failure to join, was filed on August 4, 1993. This is well within the time prescribed by § 1447(c). Likewise, there is no evidence that plaintiff engaged in any other conduct between July 23, 1993 and August 4, 1993 that would forfeit her right to seek remand. Simply put, the plaintiff acted in a timely manner in pointing out that the defendants did not. In its effort to sustain this removal, defendants rely on Glover v. W.R. Grace & Co., 773 F.Supp. 964 (E.D.Tex.1991). In Glover, one of the defendants consented to the removal four (4) days later, but it does not appear whether a motion to remand was filed during that time. After acknowledging this defect, this court noted that the requirement mandating all defendants consent to the removal was not a jurisdictional prerequisite. The court reasoned that § 1447(c) only mandated remand when the court lacked subject matter jurisdiction. In order to understand Glover, some history is required. For many years, the statute authorizing remand stated, “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case.... ” 28 U.S.C. § 1447(c), amended by 28 U.S.C. § 1447(c) (1988) (emphasis added). The Judicial Improvements and Access to Justice Act amended § 1447(c) to read: A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c) (emphasis added). After the amendment, § 1447(c) appears to mandate remand only when the court finds that it lacks subject matter jurisdiction. Glover suggests that the district court may be able to exercise some discretion over whether remand should be ordered when the case suffers from only a procedural defect. Two recent pronouncements from the Fifth Circuit, however, question the validity of Glover. The first ease is Belser" }, { "docid": "2360439", "title": "", "text": "Remand, argue that complete diversity is present. The defendants claim that plaintiff Bluth is only a nominal plaintiff who must be disregarded for diversity purposes. Further, defendants state that the grounds for removal were created by a voluntary act of plaintiff Bluth. Lastly, defendants state that the time period in 1446(b) did not commence until Graphic’s Motion for Realignment was granted and, therefore, the removal petition was properly filed. The initial question that must be addressed is the timeliness of the defendant’s removal petition. The applicable section for determining the timeliness of such a petition is 28 U.S.C. § 1446(b) which states in part: If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 28 U.S.C. § 1446(b) (1982). Graphic contends that § 1446(b) required Yampol to file his removal petition within thirty days of Yampol’s receipt of the Motion for Realignment, which was dated March 12, 1987. It is undisputed that Yampol filed the removal petition on April 29, 1987, however, it is Yampol’s contention that the thirty-day period did not being to run until April 9, 1987, the date when the Chancery Court granted the Motion for Realignment. Yampol argues that, once Graphic was aligned as a plaintiff, Bluth became a nominal plaintiff who could be disregarded for purposes of determining diversity jurisdiction and then removal was appropriate. I interpret § 1446(b) to provide that the thirty-day time period for removal does not begin to run until the grounds for removal are clearly established. I am persuaded that the mere filing of a motion for realignment by a plaintiff in a state court action does not commence the thirty-day period for removal. Not until the state court rules on such a motion, and the basis for federal jurisdiction becomes evident, does the time period for removal commence. I" }, { "docid": "15494755", "title": "", "text": "copy of all process, pleadings, and orders served upon such defendant or defendants in such action. 28 U.S.C. § 1446(a). .Section 1446(b) provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the, action. 28 U.S.C. 1446(b). . Section 1447(c) provides, in pertinent part: A motion to remand the case on the basis of a defect in removal procedure must be made within thirty days after filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal .... 28 U.S.C. § 1447(c). . Significantly, an order appointing the FDIC as receiver by its very nature places the FDIC on notice that it may remove an action pursuant to Section 1819. Accordingly, once on notice of its removal power, the FDIC should exercise additional care to ensure that cases are removed promptly. . The court in MTech pointed out that there might be merit to the" }, { "docid": "2360438", "title": "", "text": "the Chancery Court of his intention to withdraw from the litigation if the motion was granted. The Court of Chancery granted Graphic’s motion on April 9, 1987. Graphic then filed its Third Amended and Supplemental Complaint which list ed Bluth as a plaintiff, although the pleading was not signed by Bluth’s counsel. On April 29, 1987, the defendants removed the case to this Court pursuant to 28 U.S.C. § 1446(b) on the basis of federal diversity jurisdiction. Presently before this Court is plaintiffs motion to remand this action to the Delaware Chancery Court. In support of their motion, plaintiffs advance three contentions. First, plaintiffs assert that the action was improperly removed because complete diversity of citizenship between plaintiffs and defendants is lacking. Additionally, plaintiffs aver that the case is not removable because the alleged grounds for removability were not caused by a voluntary act of a plaintiff. Finally, plaintiffs maintain that the defendants did not timely file their removal petition under the provisions of 28 U.S.C. § 1446(b). The defendants, in opposing the Motion to Remand, argue that complete diversity is present. The defendants claim that plaintiff Bluth is only a nominal plaintiff who must be disregarded for diversity purposes. Further, defendants state that the grounds for removal were created by a voluntary act of plaintiff Bluth. Lastly, defendants state that the time period in 1446(b) did not commence until Graphic’s Motion for Realignment was granted and, therefore, the removal petition was properly filed. The initial question that must be addressed is the timeliness of the defendant’s removal petition. The applicable section for determining the timeliness of such a petition is 28 U.S.C. § 1446(b) which states in part: If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 28 U.S.C. § 1446(b) (1982). Graphic contends that § 1446(b) required" }, { "docid": "3045905", "title": "", "text": "defect, which is waived only if not made the subject of a motion to remand within thirty (30) days after the notice of removal? If Congress did not mean what it said, then 28 U.S.C. § 1447(c) is nothing more than a vehicle by which an unhappy plaintiff, who selected a presumptively competent state forum, can, at his option, warn the removing defendant who has woefully failed to dot his procedural i’s and cross his procedural t’s, to amend post hoc and post haste, so as to make everybody but the plaintiff happy. This court, sitting as a court of limited jurisdiction, cannot ignore a manifest procedural defect that a plaintiff has expressly complained about just because the defect was inadvertent or because the removing defendant tenders a belated correction. Contrary to the situation in Burnett, Kisor has not waived the procedural defect. Instead, she has timely complained in the only way provided her by 28 U.S.C. § 1447(c). This case, and the hypothetical case described in Burnett, resemble Newman v. Spectrum Stores, Inc., 109 F.Supp.2d, 1342 (M.D.Ala.2000), which recognizes both the potential jurisdictional fatality that inheres in a procedural defect in removal papers, and the ineffectiveness of a proffered corrective measure taken only in response to a timely jurisdictional challenge. As a court of limited jurisdiction, this court would be more than uncomfortable if it overlooked a jurisdictional defect about which a plaintiff has expressly complained just because the defect was inadvertent. There probably exists a procedural defect so hypertechnical and so innocuous that it can be overlooked, but this is not it. The jurisdictional statute that requires that “process” be contained in the notice of removal was enacted for a purpose. Statutes that limit federal jurisdiction are always strictly construed against the removing party, and there is no shame in a plaintiffs insistence on full and complete compliance with them by a defendant who wants to flee to federal court. It would indeed be ironic for Kisor to have taken the free advice dispensed by this court in Burnett, and then for this court to repudiate what it" }, { "docid": "3045901", "title": "", "text": "MEMORANDUM OPINION ACKER, District Judge. This case comes before the court on the motion of plaintiff, Shirley M. Kisor (“Ki-sor”), to remand her case to the Circuit Court of Cherokee County, Alabama, where she filed it and from which it was removed by defendants, Olin M. Collins. Jr. (“Collins”) and Millis Transfer, Inc. (“Millis”). The notice of removal filed on July 27, 2004, reflects that the state court complaint was served on the first served defendant on June 28, 2004. This means that the thirty (30) day window for removal provided by 28 U.S.C. § 1446(b) was barely met. The two removing parties invoked the jurisdiction of this court pursuant to 28 U.S.C. §§ 1441 and 1332, claiming, without contradiction, that the citizenship of plaintiff, on the one hand, and that of defendants, on the other, are diverse, and that plaintiff is looking for more than $75,000. Within the entirely separate thirty (30) day window for filing a motion to remand on the basis of a procedural defect in the removal papers, as provided by 28 U.S.C. § 1447(c), Kisor filed her present motion, pointing out that the notice of removal did not contain a copy of the summons served on Millis and did not contain copies of either return on service. On this basis, Kisor insists that defendants have failed to meet one of the mandatory prerequisites for effective removal set forth in 28 U.S.C. § 1446(a), namely, that all “process” be included. Upon receiving Kisor’s motion to remand, Collins and Millis not only oppose it, arguing that their procedural error was merely technical and thus innocuous, but they purport to amend their notice of removal to add a copy of the state court summons that was served on Millis and a copy of the return of service on him. Defendants still have not provided a copy of the return of service on Collins. Kisor understandably relies on Burnett v. Birmingham Bd. of Educ., 861 F.Supp. 1036 (N.D.Ala.1994), a case decided by this court. This court confesses to have been effusive with its obiter dicta, gratuitously drawing a roadmap" }, { "docid": "5787064", "title": "", "text": "of Removal. The Court heard oral argument on these motions on February 2, 1998. For the following reasons, the Court GRANTS Security’s Motion to Amend and DENIES FHC’s Motion to Remand. I. Any analysis of the questions posed by this case must begin with the statutory framework for' removing a case to a federal court from a state court. To determine if FHC followed the correct removal procedure, the Court turns to the removal procedure statute, 28 U.S.C. § 1446(a): A defendant or defendants desiring to remove any civil action ... from a state court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal ... containing a short and plain statement of the grounds for removal 28 U.S.C. § 1446(a) (emphasis added). 28 U.S.C. § 1446(a) required Security to list in its Notice of Removal the grounds on which it based removal. Two separate statutes come into play at this point. The first one is 28 U.S.C. § 1441(b). 28 U.S.C. § 1441(b) says that there are' only two possible grounds for Security’s removal: federal question jurisdiction or federal jurisdiction based on diversity of citizenship. Therefore, Security must, pursuant to' 28 U.S.C. § 1441(b), show this Court either the existence of a federal question or the parties’ diversity before this Court can accept Security’s removing the case here. 28 U.S.C. § 1446(a) requires that Security make that showing on the face of its Notice of Removal. The second statute at issue deals with timing. Specifically, 28 U .S.C. § 1446(b) says that Security must file its Notice of Removal within 30 days after it had received FHC’s motion for judgment. The questions raised in this case by these requirements are as follows: (1) Security failed to allege on the face of its Notice of Removal that Security had complied with the 30-day time limit of 28 U.S.C. § 1446(b). Is that failure fatal to Security’s attempt to remove? And (2) On its face, due to Security’s error in alleging its own state of incorporation," }, { "docid": "3045904", "title": "", "text": "and Millis rely on Covington v. Indemnity Insurance Co. of North America, 251 F.2d 930 (5th Cir.1958), and Woodall v. Insurance Company of North America, 582 F.Supp. 247 (N.D.Ga.1984). These cases, only one of which is binding on this court, stand for the simple proposition that a notice of removal can be corrected after a timely removal in order to remedy a mere procedural defect, such as the absence of “process” in the notice of removal. Both courts relied on the obvious fact that a procedural defect does not implicate the federal court’s subject-matter jurisdiction and therefore can be waived. The two opinions are not inconsistent with this court’s dicta in Burnett. The crucial distinction between Covington and Woo-dall, on the one hand, and the instant case, on the other, is that Kisor here filed a timely motion to remand after the expiration of defendants’ time for filing a notice of removal. Did Congress mean something when in 28 U.S.C. § 1447(c) it expressly distinguished between subject-matter jurisdiction, which cannot be waived, and a procedural defect, which is waived only if not made the subject of a motion to remand within thirty (30) days after the notice of removal? If Congress did not mean what it said, then 28 U.S.C. § 1447(c) is nothing more than a vehicle by which an unhappy plaintiff, who selected a presumptively competent state forum, can, at his option, warn the removing defendant who has woefully failed to dot his procedural i’s and cross his procedural t’s, to amend post hoc and post haste, so as to make everybody but the plaintiff happy. This court, sitting as a court of limited jurisdiction, cannot ignore a manifest procedural defect that a plaintiff has expressly complained about just because the defect was inadvertent or because the removing defendant tenders a belated correction. Contrary to the situation in Burnett, Kisor has not waived the procedural defect. Instead, she has timely complained in the only way provided her by 28 U.S.C. § 1447(c). This case, and the hypothetical case described in Burnett, resemble Newman v. Spectrum Stores, Inc., 109" }, { "docid": "4737345", "title": "", "text": "removal was filed. Therefore, I examine the facts as they existed at the time of removal (July 24, 1989) and at the time of filing the supplemental and amending notice of removal (February 20, 1990). I then discuss whether abstention and remand are appropriate in this case. II. July 24, 1989 A. Untimely Removal Initially, plaintiffs contend that the defendants untimely filed the original notice of removal. The removal statute provides that “[t]he petition for removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading.” 28 U.S.C. § 1446(b). Although plaintiffs seem to concede that defendants removed the action within thirty days of proper service, plaintiffs argue that defendants had notice of the suit well before service was effected. As evidence of defendants’ knowledge of the suit, plaintiffs cite defendants’ filing of motions for extensions of time on May 24, 1989 — two months prior to the filing of the notice of removal. Defendants do not contest this presentation of the relevant facts. Rather, noting that the cases are split on the question of when the thirty day removal period begins, defendants urge that I apply the “majority rule”: the thirty day period runs from the time of proper service. See Hunter v. American Express, 643 F.Supp. 168, 169-70 (S.D.Miss. 1986). However, this interpretation conflicts with the plain language of the rule. I interpret the statute to mean what it says: the thirty day period begins to run upon receipt of a copy of the pleading, regardless of whether service was properly effected. Under this interpretation, the asserted basis of jurisdiction is immaterial because defendants simply removed this case too late. Plaintiffs, however, have waived any objection to defendants’ untimely removal. Although defendants do not raise this point, the removal statute also provides: “A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal.” 28 U.S.C. § 1447(c). Failure to timely raise" }, { "docid": "23313810", "title": "", "text": "term “improvidently,” Congress amended the subsection in 1988 to provide, in relevant part: A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under § 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the ease shall be remanded.... Judicial Improvements and Access to Justice Act of 1988, Pub.L. No. 100-702, § 1016(c)(1) (emphasis added). Although the new clause, “defect in removal procedure,” was an improvement from “improvident,” confusion remained over what removal defects triggered the 30-day time limit. See David D. Siegel, Commentary on 1996 Revision of Section 1447(c), 28 U.S.C.A. § 1447 (West Supp.1988). Removal defects that were not traditionally categorized as procedural, but also did not impact subject matter jurisdiction, occupied a grey area in the law. Until Congress enacted further revisions to § 1447(c) in 1996, some courts placed the forum defendant rule in this grey area. See Snapper, 171 F.3d at 1258 (“The revised language [of the 1996 Amendments] would seem to address neatly the issue [regarding § 1441(b) ] that had concerned courts under the 1988 version, suggesting that removal in violation of § 1441(b) is subject to the 30-day time limit.”). As amended in 1996, a remand motion “on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under § 1446(a).” Pub.L. No. 104-219, § 1 (1996) (emphasis added). We agree with the Eleventh Circuit’s historical analysis of § 1447(c), which concludes that, by substituting “defect other than lack of subject matter jurisdiction” for “defect in removal procedure,” Congress sought to ensure that even the “more substantive” removal defects, such as § 1441(b) violations, were subject to the 30-day time limit. Snapper, 171 F.3d at 1257-58. Therefore, although the forum defendant rule is not a traditional rule of removal procedure, as articulated in § 1446, we agree that the 1996 amendments to § 1447(c) subject § 1441(b) violations" } ]

[ { "docid": "18430693", "title": "", "text": "Except by way of background, we have not chronicled any facts bearing on the question whether Daley was discharged in retaliation for his advocacy of nurses’ professional rights, nor on the question whether the hospital’s actions constituted sex discrimination on the basis of traditional views of the female nursing role as a menial one, for the legality of Daley’s discharge is not before us. Rather, we are asked to find that plaintiff has not created a material factual issue as to subsequent retaliatory acts between June 22, 1975 and December 19, 1975. We turn first to plaintiff’s Title VII claims. III. The Title VII Claim 42 U.S.C. § 2000e-3(a) provides: (a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . [or] . to discriminate against any individual . . . 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, (emphasis added). Daley claims that he was discriminated against for opposing St. Agnes Hospital’s practice of relegating nurses, who are almost all women, to an inferior position. While he is barred from contesting his discharge, see p. 1311, supra, he contends that the hospital continued its retaliatory conduct by issuing unfavorable references and by “blacklisting” him. Giving unfavorable references may, in appropriate circumstances, constitute discriminatory conduct by an employer against his employee. See Shehadeh v. Chesapeake & Potomac Telephone Co., 595 F.2d 711 (D.C.Cir.1978). The only appellate court to consider the issue held that a claimant who has experienced discriminatory action at the hands of his employer states a cause of action under the “opposition” clause of Title VII so long as he reasonably believes the employment practice he opposes constitutes unlawful discrimination under Title VII. Sias v. City Demonstration Agency, 588 F.2d 692 (9th Cir. 1978). See also Hearth v. Metropolitan Transit Commission, 436 F.Supp. 685 (D.Minn.1977); but see EEOC v. C & D Sportwear Corp., 398" } ]

[ { "docid": "6601772", "title": "", "text": "§ 296(l)(e) contain nearly identical language: § 2000e-3 provides that it is an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice ... or because he has made a charge” of an unlawful employment practice, while § 296(l)(e) provides that “[i]t shall be an unlawful discriminatory practice for an employer ... to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden ... or because he has filed a complaint.” The Second Circuit has held that federal anti-discrimination statutes prohibit “discrimination related to or arising out of employment relationships whether or not the person discriminated against is an employee at the time of the discriminatory conduct.” Pantchenko v. C.B. Dolge Company, Inc., 581 F.2d 1052 (2d Cir.1978). In Pantchenko, the Court defined “employee” in Title VII to include former employees in order to give effect to the statute’s purpose of furnishing “a remedy against an employer’s use of discrimination in connection with a prospective, present or past employment relationship to cause harm to another.” Id. at 1055; see also Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir.1979) (former employees fall within the broad remedial scope of Title VII); Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir.1977). Because Title VII would permit plaintiff to maintain a retaliation claim against Prudential, Beckett may properly assert a claim of retaliation against her former employer under § 296 of the NYHRL. ii. Negative References Are A Cognizable Form Of Retaliation Prudential argues that, even if Jack or Farrell gave a negative reference to So-foul, a claim of retaliation is not stated because a negative reference is not a retaliatory act. Poor recommendations, refusals to furnish recommendations, or threats to future employers may be discriminatory practices if done in direct retaliation for a former employee’s opposition to an unlawful employment practice. The Second Circuit has held that charges of blacklisting fall within the broad remedial scope of Title VII. Silver, 602 F.2d at 1090; see also Pantchenko, 581 F.2d" }, { "docid": "7920706", "title": "", "text": "publication in most cases of job notices or advertisements indicating a preference based on a suspect classification. .Section 706(g) empowers the court to order declaratory relief, injunctive relief such as reinstatement or hiring of employees with or without back pay, or \"any other equitable relief as the court deems appropriate.” 42 U.S.C.A. § 2000e-5(g) (West 1994). In addition, Section 102 of the Civil Rights Act of 1991 permits courts, in an appropriate case, to award compensatory and punitive damages for violations of Sections 703 and 704 of Title VII. 42 U.S.C.A. § 1981a (West 1994). . The dawn of the brave new world envisioned by the majority will not escape the attention of employers, who will soon enough realize that they have been given a free rein to retaliate against disfavored employees, so long as the employee is first terminated. At XYZ Corporation, there may never be another Smith. . Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198-200 (3d Cir.), cert. denied, - U.S. -, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); EEOC v. J.M. Huber Corp., 927 F.2d 1322, 1331 (5th Cir.1991) (citing EEOC v. Cosmair, Inc., L’Oreal Hair Care Div., 821 F.2d 1085, 1088 (5th Cir.1987)); Bailey v. USX Corp., 850 F.2d 1506, 1509-10 (11th Cir.1988); O'Brien v. Sky Chefs, Inc., 670 F.2d 864, 869 (9th Cir.1982), overruled on other grounds by Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1481-82 (9th Cir.1987) (en banc); Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir.1978); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir.1977). See also EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir.1993) (former employee may state a claim under Section 704(a) on something akin to an agency theory where offer of reinstatement is withdrawn in retaliation for the actions of another employee — the plaintiff’s husband — in protesting his wife's discharge). Still another circuit has construed the nearly identical anti-retaliation provision of the Age Discrimination in Employment Act to apply to former employees. See Passer v. American Chem. Soc’y, 935 F.2d 322, 330-31 (D.C.Cir.1991)." }, { "docid": "1345153", "title": "", "text": "include failure to rehire, failure to promote, termination, differential compensation, or some other action which tangibly injures an employee who pursued a Title VII action. Other courts addressing the issue of retaliation have identified a broader range of acts as adverse, based on the scope of their consequences. In Collins v. State of Illinois, 830 F.2d 692, 702 (7th Cir.1987), the Seventh Circuit held that an employer retaliated against its employee for her filing of an EEOC complaint when it transferred the employee to a lateral position which, although not involving any reduction in pay or benefits, was essentially demeaning. In so holding, the Collins court noted that “Title VII does not limit adverse job action to strictly monetary considerations. ... It can encompass other forms of adversity as well.” Id. at 703. In similar cases, adverse job impact has been found where an employee’s office was moved to an undesirable location, Trout v. Hidalgo, 517 F.Supp. 873, 890 n. 67 (D.D.C.1981), aff'd in part and rev’d in part sub nom. Trout v. Lehman, 702 F.2d 1094 (D.C.Cir.1983), vacated on other grounds, 465 U.S. 1056, 104 S.Ct. 1404, 79 L.Ed.2d 732 (1984); where an employee was transferred to an isolated corner, Harris v. Richards Mfg. Co., 511 F.Supp. 1193, 1203 (W.D.Tenn.1981), aff'd in part and rev’d in part, 675 F.2d 811 (6th Cir.1982); and where an employee was required to move her personal files and was prohibited from using the firm’s stationery and support services, Commonwealth v. Thorp, Reed & Armstrong, 25 Pa.Cmwlth. 295, 361 A.2d 497, 502 (1976) (applying a state statute similar to Title VII). Moreover, several courts have also determined that the sending of unfavorable letters of reference to prospective employers of former employees, with the discriminatory intent of retaliation for a protected employee activity, constitutes an adverse employment action. See London v. Coopers & Lybrand, 644 F.2d 811, 817 (9th Cir.1981); Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052 (2d Cir.1978); Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir.1977). The courts in these eases reasoned that a broad construction of Title VII" }, { "docid": "23524445", "title": "", "text": "the court held that the giving of adverse references to potential employers can constitute a violation of § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(l). The Shehadeh majority noted that: “A former employer is solidly in position to impede a prior employee’s reentry into the job market. When that influence is exerted to limit employment opportunities on grounds of ‘race, color, religion, sex, or national origin,’ an evil at which Section 703(a)(1) is unequivocally aimed materializes.” 595 F.2d at 722. Shehadeh thus recognized that employment discrimination can be effectively practiced by a former employer who, with the intent to discriminate, sets out to give a former employee a bad name in the job market. See also E.E.O.C. v. Western Publishing Co., Inc., 502 F.2d 599 (8th Cir. 1974); Daley v. St. Agnes Hospital, Inc., 490 F.Supp. 1309 (E.D.Pa.1980); Tarvesian v. Carr Division of TRW, Inc., 407 F.Supp. 336 (D.Mass.1976); cf. E.E.O.C. v. United States Fidelity & Guaranty Co., 414 F.Supp. 227 (D.Md.1976). But see Moore v. Bank of New Orleans, 12 F.E.P. Cas. 1566 (E.D.La.1975). In at least one instance, the dissemination of adverse employment references has been held to violate § 704(a), 42 U.S.C. 2000e-3, which prohibits inter alia any action taken in retaliation against the filing of a charge of employment discrimination. Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977). Cf. Pantchenko v. C. B. Dolge Co., 581 F.2d 1052 (2d Cir. 1978) (failure to give any employment reference). We have located only one decision holding that the giving of adverse references by a former employer can violate § 1981. In Moore v. Bank of New Orleans, supra, the court reasoned that: “[1981] was passed to protect the right to contract. If plaintiff’s allegations are true, then her right to contract with other employers has been interfered with by the defendant because of her race. Such action is within the purview of § 1981, H 12 F.E.P.Cas. at 1568. We find the reasoning in Moore to be persuasive. § 1981, by its terms, is designed- to protect the right to make and enforce" }, { "docid": "13391970", "title": "", "text": "in Chicago, Illinois at a salary of $13,200.00 annually. Plaintiff remains employed by Wagner as a sales representative at a salary of $27,565.00 annually. 25. On June 30,1976, the EEOC issued a determination that there was reasonable cause to believe plaintiff’s allegation of retaliation regarding the reason given to Commonwealth by defendant for plaintiff leaving the employ of defendant. CONCLUSIONS OF LAW 1. The court has jurisdiction over this cause of action pursuant to title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3) (1978). 2. Title VII provides, in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees . .. because he has opposed any practice made an unlawful employment practice by this subchapter or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a) (1978). 3. Defendant is an employer for the purpose of title VII as defined in 42 U.S.C. § 2000e(b) (1978). 4. Plaintiff, as a former employee of defendant, can maintain a cause of action based upon retaliation as prohibited by 42 U.S.C. § 2000e-3 (1978). Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (per curiam); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir. 1977). 5. It is not necessary for a plaintiff to establish the validity of the underlying EEOC charge in order to establish a claim of employer retaliation in violation of 42 U.S.C. § 2000e-3 (1978). Berg v. LaCrosse Cooler Co., 612 F.2d 1041, 1043 (7th Cir. 1980); Rogers v. McCall, 488 F.Supp. 689, 697 (D.C.D.C.1980); Slotkin v. Human Development Corp., 454 F.Supp. 250, 257 (E.D.Mo.1978). 6. The EEOC’s findings pursuant to an investigation are admissible evidence and may be considered by the court. Smith v. Universal Service, Inc., 454 F.2d 154, 157 (5th Cir. 1972). 7. The shifting burden of proof standard applied in title VII suits generally as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct." }, { "docid": "13391971", "title": "", "text": "4. Plaintiff, as a former employee of defendant, can maintain a cause of action based upon retaliation as prohibited by 42 U.S.C. § 2000e-3 (1978). Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (per curiam); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir. 1977). 5. It is not necessary for a plaintiff to establish the validity of the underlying EEOC charge in order to establish a claim of employer retaliation in violation of 42 U.S.C. § 2000e-3 (1978). Berg v. LaCrosse Cooler Co., 612 F.2d 1041, 1043 (7th Cir. 1980); Rogers v. McCall, 488 F.Supp. 689, 697 (D.C.D.C.1980); Slotkin v. Human Development Corp., 454 F.Supp. 250, 257 (E.D.Mo.1978). 6. The EEOC’s findings pursuant to an investigation are admissible evidence and may be considered by the court. Smith v. Universal Service, Inc., 454 F.2d 154, 157 (5th Cir. 1972). 7. The shifting burden of proof standard applied in title VII suits generally as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), also is applied in cases alleging retaliation for participation in title VII grievance procedures. See Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); Hochstadt v. Worchester Foundation, 425 F.Supp. 318, 324 (D.Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976); Aguirre v. Chula Vista Sanitary Service & Sani-Tainer, Inc., 542 F.2d 779, 781 (9th Cir. 1976). 8. In order to establish a prima facie case of retaliation in violation of 42 U.S.C. § 2000e-3 (1978), the plaintiff must establish: (1) statutorily-protected participation by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). “Statutorily-protected participation” by the employee includes the filing of employment discrimination charges with the EEOC. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005-06 (5th Cir. 1969). “Adverse employment action” by the" }, { "docid": "2128323", "title": "", "text": "(2d Cir. 1978) (plaintiff states cause of action by alleging that former employer failed to furnish letters of recommendation in retaliation for filing discrimination charges with Equal Employment Opportunity Commission); Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977) (advising prospective employer that a former employee has filed sex discrimination charges violates Title VII); EEOC v. Western Publishing Co., 502 F.2d 599 (8th Cir. 1974) (EEOC is entitled to enforce subpoena to investigate charge that racial motivation underlay adverse employment references). . Brief for appellant at 11 n.2. . Memorandum Opinion at 8, JA 26a. . In reviewing the trial court’s findings of fact this court is governed by the “clearly erroneous” test of Fed.R.Civ.P. 52(a). Although appellant apparently believes we should do so, see brief for appellant at 17, we see no basis for rejecting any of the court’s findings under this standard. . 42 U.S.C. § 2000e-3(a) (1976) (emphasis added). In view of the plain language of the statute, we are unable to understand the view, implicit in the dissent, that a reprisal based on, an employee’s participation in Title VII enforcement activities is not condemned per se by the statute. The statute does not, as the dissent suggests, condemn only those reprisals that are motivated by racial hatred or abstract hostility to EEO. It specifically forbids penalization of participation in protected activities. . See notes 25-30 supra and accompanying text. . See Examiner’s Findings, supra note 24, at 2. . Id. at 4. . See brief for appellant at 21. Appellant asks for injunctive relief or priority consideration for future promotions, or both. . See Memorandum Opinion at 9, JA 27a (“[Tjhere has been no finding of discrimination with respect to any of defendant’s actions.”). Within the context of the statute the term “discrimination” obviously refers to wrongful and punitive acts based on unlawful retaliatory moUves as well as to disparate treatment based directly on race and other condemned factors. . The term “prevailing party,” as it appears in the pertinent section of Title VII, 42 U.S.C. § 2000e-5(k) (1976), encompasses persons who are" }, { "docid": "17785983", "title": "", "text": "occurred on the job were untimely for independent charge purposes, they form the basis upon which a motivation on the part of the company to retaliate against [the complainant] through bad references and recommendations in violation of Title VII may rest. It is not a violation of Title VII to provide a bad reference or recommendation if there is a nondiscriminatory basis for doing so. Id. at 243-244. It is unclear whether the court regarded discriminatory references as violative of § 704(a), 42 U.S.C. § 2000e-3(a) (1976), see note 55 infra, rather than or in addition to § 703(a)(1), 42 U.S.C. § 2000e-2(a)(l) (1976). In Tarvesian v. Carr Div. of TRW, Inc., 407 F.Supp. 336, 340-341 & n.6 (D.Mass.1976), the court, unable to locate authority on the issue at hand, declined to dismiss claims alleging dissemination of bad references in violation of § 703(a)(1). A somewhat variant theory was articulated in Moore v. Bank of New Orleans, 12 F.E.P.Cas. 1566, 1568 (E.D.La.1975): After a careful reading of the language of 42 U.S.C. § 2000e-2(a), we conclude that it does not apply to adverse employment references unless there are also other allegedly cognizable discriminatory acts that fall within Title VIÍ, e. g., a termination or a failure to promote. However, plaintiff does state a good cause of action under § 1981. The Tenth Circuit has recently held that advising a prospective employer that a former employee filed a sex discrimination charge against the prior employer violates § 704(a), 42 U.S.C. § 2000e-3(a) (1976). Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977). Similarly, in Pantchenko v. C. B. Dolge Co., 581 F.2d 1052 (2d Cir. 1978), at 4464-4466, the Second Circuit held that a plaintiff stated a cause of action under that section when he alleged that, in retaliation for his filing of discrimination charges with the Equal Employment Opportunity Commission, his former employer refused to furnish letters of recommendation for him. We have uncovered no authority indicating that discriminatory issuance of negative references could never transgress § 703(a)(1). . 42 U.S.C. § 2000e-2(a)(l) (1976) (emphasis supplied). ." }, { "docid": "1345154", "title": "", "text": "F.2d 1094 (D.C.Cir.1983), vacated on other grounds, 465 U.S. 1056, 104 S.Ct. 1404, 79 L.Ed.2d 732 (1984); where an employee was transferred to an isolated corner, Harris v. Richards Mfg. Co., 511 F.Supp. 1193, 1203 (W.D.Tenn.1981), aff'd in part and rev’d in part, 675 F.2d 811 (6th Cir.1982); and where an employee was required to move her personal files and was prohibited from using the firm’s stationery and support services, Commonwealth v. Thorp, Reed & Armstrong, 25 Pa.Cmwlth. 295, 361 A.2d 497, 502 (1976) (applying a state statute similar to Title VII). Moreover, several courts have also determined that the sending of unfavorable letters of reference to prospective employers of former employees, with the discriminatory intent of retaliation for a protected employee activity, constitutes an adverse employment action. See London v. Coopers & Lybrand, 644 F.2d 811, 817 (9th Cir.1981); Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052 (2d Cir.1978); Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir.1977). The courts in these eases reasoned that a broad construction of Title VII is required to effect its purpose, “... which is to furnish a remedy against an employer’s use of discrimination in connection with a prospective, present or past employment relationship to cause harm to another.” Pantchenko, 581 F.2d at 1055. In all of these cases, the common factor is that the retaliation took the form of “subtle distinctions in the terms and conditions of employment.” Rodriguez v. Board of Educ., 620 F.2d 362, 364 (2d Cir.1980) (emphasis added). In the case sub judice, Boyd maintains that the false evidence and testimony allegedly provided by Brookstone, and resulting in an unfavorable EEOC decision, constitute a retaliatory, adverse employment decision on the part of Brookstone. Boyd further alleges that he has suffered irreparable injury, damage, and distress because the unfavorable EEOC ruling, reached as a result of Brookstone’s alleged retaliatory conduct, legitimizes Brookstone’s initial decision not to promote Boyd and provides Brookstone with the grounds to continue to deny Boyd promotions and the attendant increases in salary, benefits, opportunity, and prestige. In addition, Boyd claims to be adversely" }, { "docid": "17785982", "title": "", "text": "claim by respondent that United’s seniority system deterred her from asserting any right granted by Title VII. It does not present the question raised in the so-called departmental seniority cases. See, e. g., Quarles v. Phillip Morris, 279 F.Supp. 505 (E.D.Va.1968). 431 U.S. at 558, n.10, 97 S.Ct. at 1889 n.10, 52 L.Ed.2d at 579 n.10. See also Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158, 163 (1970); B. Schlei & P. Grossman, Employment Discrimination Law 908 (1976). . In EEOC v. Western Publishing Co., 502 F.2d 599 (8th Cir. 1974), the court approved enforcement of a Commission subpoena— prompted by a charge of racially-motivated adverse employment references — for materials related to the employer’s reference policies. Similarly, in EEOC v. United States Fidelity & Guar. Co., 414 F.Supp. 227 (D.Md.1976), enforcement of a Commission subpoena for information relevant to investigation of “a charge of retaliation and discriminatory references” was ordered. Id. at 243. The court observed: Although [the complainant’s] allegations relating to unlawful employment practices which occurred on the job were untimely for independent charge purposes, they form the basis upon which a motivation on the part of the company to retaliate against [the complainant] through bad references and recommendations in violation of Title VII may rest. It is not a violation of Title VII to provide a bad reference or recommendation if there is a nondiscriminatory basis for doing so. Id. at 243-244. It is unclear whether the court regarded discriminatory references as violative of § 704(a), 42 U.S.C. § 2000e-3(a) (1976), see note 55 infra, rather than or in addition to § 703(a)(1), 42 U.S.C. § 2000e-2(a)(l) (1976). In Tarvesian v. Carr Div. of TRW, Inc., 407 F.Supp. 336, 340-341 & n.6 (D.Mass.1976), the court, unable to locate authority on the issue at hand, declined to dismiss claims alleging dissemination of bad references in violation of § 703(a)(1). A somewhat variant theory was articulated in Moore v. Bank of New Orleans, 12 F.E.P.Cas. 1566, 1568 (E.D.La.1975): After a careful reading of the language of 42 U.S.C. § 2000e-2(a), we" }, { "docid": "23524444", "title": "", "text": "complaint should not be dismissed for failure to state a claim “... unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\" Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 101, 102, 2 L.Ed.2d 80 (1957). Paragraph Seven of the Second Amended Complaint alleges, in effect, two types of discriminatory conduct. Allegations of the preparation and dissemination of negative performance reports, and of informing other accounting firms that London was a “troublemaker” involve the giving of adverse employment references to potential employers. Allegations that Coopers & Lybrand had informed both the U.S.C. placement office and potential employers that London had filed discrimination charges involve retaliation for filing such charges. We must consider whether either class of activities is cognizable under § 1981. There is little question that the dissemination of adverse employment references can constitute a violation of Title VII if motivated by discriminatory intent. In Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711 (D.C.Cir.1978), the court held that the giving of adverse references to potential employers can constitute a violation of § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(l). The Shehadeh majority noted that: “A former employer is solidly in position to impede a prior employee’s reentry into the job market. When that influence is exerted to limit employment opportunities on grounds of ‘race, color, religion, sex, or national origin,’ an evil at which Section 703(a)(1) is unequivocally aimed materializes.” 595 F.2d at 722. Shehadeh thus recognized that employment discrimination can be effectively practiced by a former employer who, with the intent to discriminate, sets out to give a former employee a bad name in the job market. See also E.E.O.C. v. Western Publishing Co., Inc., 502 F.2d 599 (8th Cir. 1974); Daley v. St. Agnes Hospital, Inc., 490 F.Supp. 1309 (E.D.Pa.1980); Tarvesian v. Carr Division of TRW, Inc., 407 F.Supp. 336 (D.Mass.1976); cf. E.E.O.C. v. United States Fidelity & Guaranty Co., 414 F.Supp. 227 (D.Md.1976). But see Moore v. Bank of New Orleans, 12 F.E.P. Cas. 1566" }, { "docid": "2128322", "title": "", "text": "only. Id. at 1086. Although the question of alternative remedies was not reached, because the defendant conceded the plaintiff’s entitlement to a remedy in the form of priority consideration for the promotion he had been denied and had actually awarded such a promotion after the plaintiff commenced the litigation, see id. at 1084-1085 n.l, the court’s statement of the issues reflects a clear distinction between the question of legal wrong and appropriate legal remedy: Discrimination is of course a serious matter wherever it appears, and the supervising officials should take action to root it out, whether or not the applicant in a particular case would have been hired or promoted absent the discrimination. But when retroactive promotion and back pay are sought, further questions must be answered. * * * Unless the court finds that Day would otherwise have been promoted, back pay is inappropriate. Id. at 1084-1085 (emphasis added; footnotes omitted). . Courts in other circuits have at least implicitly upheld the same view. See Pantchenko v. C. B. Dolge Co., 581 F.2d 1052 (2d Cir. 1978) (plaintiff states cause of action by alleging that former employer failed to furnish letters of recommendation in retaliation for filing discrimination charges with Equal Employment Opportunity Commission); Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977) (advising prospective employer that a former employee has filed sex discrimination charges violates Title VII); EEOC v. Western Publishing Co., 502 F.2d 599 (8th Cir. 1974) (EEOC is entitled to enforce subpoena to investigate charge that racial motivation underlay adverse employment references). . Brief for appellant at 11 n.2. . Memorandum Opinion at 8, JA 26a. . In reviewing the trial court’s findings of fact this court is governed by the “clearly erroneous” test of Fed.R.Civ.P. 52(a). Although appellant apparently believes we should do so, see brief for appellant at 17, we see no basis for rejecting any of the court’s findings under this standard. . 42 U.S.C. § 2000e-3(a) (1976) (emphasis added). In view of the plain language of the statute, we are unable to understand the view, implicit in the dissent," }, { "docid": "17319399", "title": "", "text": "is based on the trespassing incident. Defendant urges that Title VII applies only to employer-employee relations; therefore, since Plaintiff had already been fired when the arrest and prosecution occurred, no employer-employee relationship is implicated. The Fourth Circuit has not yet ruled on the availability of an action for retaliation against a former employer for acts done after the employment relationship has ended. Both the Second and Tenth Circuits, however, have held that a former employee has a right of action for retaliation where the former employer governs its actions in connection with the former employee’s personnel file with an eye toward the former employee’s EEOC action. Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir.1978) (where employee claimed that former employer refused to issue letter of recommendation and made false and deprecating statements about former employee to prospective employers in retaliation for former employee’s EEOC charge, defendant former employer not entitled to summary judgment on ground that complaint not covered by Title VII); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir.1977) (rejecting argument that, because former employee was no longer employed by defendant bank when bank committed alleged retaliatory acts of refusing to issue letter of recommendation and informing prospective employers that former employee had filed EEOC charge, no cause of action stated under Title VII). In addition, two district courts in the Fourth Circuit have allowed actions based on retaliation by a former employer. Sparrow v. Piedmont Health Systems Agency, Inc., 593 F.Supp. 1107, 1119 (M.D.N.C.1984) (former employer’s refusal to issue recommendation because of pending EEOC charge violated 42 U.S.C. § 2000e-3(a)); E.E.O.C. v. Virginia Carolina Veneer Corp., 495 F.Supp. 775, 777 (W.D.Va.1980) (former employer’s filing of state court action against former employee, claiming defamation by former employee’s EEOC charge constituted retaliatory act). In particular, Virginia Carolina Veneer Corp. is pertinent here because the alleged act of retaliation there, as here, did not involve present or future employment (cf. refusal to issue letter of recommendation), but rather damaged the former employee personally. This Court therefore is of the opinion that the allegation" }, { "docid": "13391973", "title": "", "text": "employer includes, inter alia, discharging the employee, harassing or disciplining the employee, and giving poor recommendations or references to prospective employers of the employee. See Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) (discharge); Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (per curiam) (recommendation); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir. 1977) (reference); Hayden v. Chrysler Corp., 486 F.Supp. 557, 563 (E.D.Mich.1980) (harassment). “Causal connection” consists of evidence showing that a retaliatory motive played a part in the adverse employment action which includes establishing that the employer had actual or imputed knowledge of the employee’s statutorily-protected participation. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, - U.S. ——, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); Rogers v. McCall, 488 F.Supp. 689, 697-98 (D.C.D.C.1980). 9. If the plaintiff establishes a prima facie case of retaliation, under McDonnell Douglas Corp. v. Green, 411 U.S. 722, 802- 04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and its progeny, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the defendant so rebuts the plaintiff’s prima facie case, the plaintiff then must prove that the defendant’s reasons were a pretext for discrimination prohibited by title VII. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). 10. Applying the law to the alleged retaliation by defendant in giving an unfavorable and untrue recommendation of plaintiff to Commonwealth, the court concludes that plaintiff has failed to establish a prima facie case of retaliation in violation of 42 U.S.C. § 2000e-3 (1978). Plaintiff has shown that he engaged in statutorily-protected activity pursuant to 42 U.S.C. § 2000e-3 (1978) by filing the original EEOC charge in August 1973. Plaintiff, however, has not shown any adverse employment action by defendant regarding plaintiff’s application for employment with Commonwealth. Rather, as a result of an inquiry by Commonwealth, defendant merely relayed" }, { "docid": "23449723", "title": "", "text": "in Ferguson was brought under section 703 of Title VII. Ferguson, 443 F.Supp. at 1336, 1339. Charl-ton’s claim for retaliatory action is brought under section 704(a). A section 704(a) claim for retaliation is quite different from a discrimination claim under section 703. Retaliation claims can often arise post-employment when an employee who has been terminated files an action under Title VII charging discrimination in discharge only to meet continued harassment from its employers in retaliation for the filing of the action. Accordingly, because we are not fully persuaded of the validity of Ferguson’s holding, even in the context of section 703 claims, we will independently examine the application of section 704(a) to post-employment retaliatory acts. There is a split of federal authority on this issue. One line of cases holds that termination of the employment relationship does not preclude a claim for retaliation under Title VII or other statutes prohibiting invidious discrimination. See, e.g., Passer v. American Chem. Soc’y, 935 F.2d 322, 330-31 (D.C.Cir.1991) (interpreting parallel provision of Age Discrimination in Employment Act (“ADEA”)); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1531-32 (11th Cir.) (interpreting Title VII), cert. denied, 498 U.S. 943, 111 S.Ct. 353, 112 L.Ed.2d 317 (1990); Bailey v. USX Corp., 850 F.2d 1506, 1509-10 (11th Cir.1988) (Title VII); Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1054-55 (2d Cir.1978) (Title VII); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165-66 (10th Cir.1977) (Title VII); Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir.1977) (interpreting anti-retaliation provision in Fair Labor Standards Act); EEOC v. Metzger, 824 F.Supp. 1, 2-3 (D.D.C.1993) (Title VII); Cohen v. S.U.P.A. Inc., 814 F.Supp. 251, 260-61 (N.D.N.Y.1993) (ADEA); Berry v. Stevinson Chevrolet, 804 F.Supp. 121, 135-36 (D.Colo.1992) (Title VII); cf. EEOC v. Ohio Edison Co., 7 F.3d 541, 544-45 (6th Cir.1993); see also Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 875-77 (6th Cir.) (focusing on ability to “affect” employment opportunities in analyzing Title VII section 704 retaliation claim), cert. denied, - U.S. -, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991). Using a narrow, literal reading of Title VII, other" }, { "docid": "23046665", "title": "", "text": "an employment relationship. Charlton makes this implication by indicating that “courts ... have extended anti-retaliation protection ... where the retaliation results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm.” Charlton, 25 F.3d at 200. But as Charlton is not conclusive on this point we look beyond that case to determine the type of an employer’s post-employment conduct prohibited under Title VII. The Supreme Court has stated that “[t]he objective of Congress in the enactment of Title VII ... was to achieve equality of employment opportunities_” Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). See Shehadeh v. Chesapeake and Potomac Tel. Co., 595 F.2d 711, 721 (D.C.Cir.1978). Therefore, for Title VII protections to apply, there should be some connection between the allegedly retaliatory conduct and an employment relationship. Although “[t]he connection with employment need not necessarily be direct,” it does not further the purpose of Title VII to apply section 704 to conduct unrelated to an employment relationship. As the court indicated in Reed v. Shepard, 939 F.2d 484, 493 (7th Cir.1991), section 704 requires that the employee demonstrate some type of “employment impairment that evidences actionable retaliation.” In view of Congress’s objective in enacting Title VII, it is not surprising that cases dealing with unlawful retaliation under Title VII typically involve circumstances in which the defendant’s conduct has impaired or might impair the plaintiff in employment situations. See Lazic v. University of Pennsylvania, 513 F.Supp. 761, 765, 767-69 (E.D.Pa.1981) (deletion of positive references from personnel file after EEOC charge filed); Bailey v. USX Corp., 850 F.2d 1506, 1507-08 (11th Cir.1988) (unfavorable reference for a former employee by former employer after EEOC filed); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1163-64 (10th Cir.1977) (potential future employer informed of circumstances of discharge and a letter of reference modified to reflect that the former employee had filed sexual discrimination charges); EEOC v. Cosmair, Inc., 821 F.2d 1085, 1087 (5th Cir.1987) (discontinuance of severance benefits after EEOC charge filed); Pantchenko v. C.B. Dolge" }, { "docid": "23524446", "title": "", "text": "(E.D.La.1975). In at least one instance, the dissemination of adverse employment references has been held to violate § 704(a), 42 U.S.C. 2000e-3, which prohibits inter alia any action taken in retaliation against the filing of a charge of employment discrimination. Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977). Cf. Pantchenko v. C. B. Dolge Co., 581 F.2d 1052 (2d Cir. 1978) (failure to give any employment reference). We have located only one decision holding that the giving of adverse references by a former employer can violate § 1981. In Moore v. Bank of New Orleans, supra, the court reasoned that: “[1981] was passed to protect the right to contract. If plaintiff’s allegations are true, then her right to contract with other employers has been interfered with by the defendant because of her race. Such action is within the purview of § 1981, H 12 F.E.P.Cas. at 1568. We find the reasoning in Moore to be persuasive. § 1981, by its terms, is designed- to protect the right to make and enforce contracts, a right which encompasses freedom from employment discrimination. E. g., Johnson v. Railway Express, supra. By providing an adverse employment reference with the intent to discriminate on racial grounds, a former employer actively interferes with a job applicant’s right to enter into an employment contract, and may utilize the unwitting assistance of an otherwise innocent third party in its plan to discriminate. The giving of adverse references under such circumstances is contrary to the letter, policy, and spirit of § 1981. We are also persuaded by the cases cited earlier holding that adverse references may violate 42 U.S.C. § 2000e-2(a)(l). The guarantees of § 1981 and Title VII against racial discrimination are coextensive, and neither is greater or lesser than the other in scope. See, e. g., Carrion v. Yeshiva University, 535 F.2d 722, 729 (2d Cir. 1976). In the present case, we find that London has adequately alleged a pattern of racially discriminatory conduct which would be violative of § 1981 if proven. While the complaint here is not a textbook example of" }, { "docid": "10578645", "title": "", "text": "an “employee” as “an individual employed by an employer.” 42 U.S.C. § 2000e(f). Pepe’s concludes from these two sections that Bilka has not stated a claim for relief under § 704(a) because the alleged reprisals occurred long after the end of the employment relationship; thus, Bilka was no longer an “employee,” and Pepe’s could not have committed “an unlawful employment practice” under § 704(a). We disagree with this overly literal interpretation of the statute. In Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir.1977), the Court held that an employer violates § 704(a) when it gives bad references in retaliation for a former employee’s assertion of Title VII rights. Rejecting the argument that § 704(a) does not apply to “former employees,” the court concluded that “[t]he argument is based on a literal reading of the statute which, if followed, would result in a narrow interpretation of the statute not justified by its legislative history. A statute which is remedial in nature should be liberally construed.” Id. at 1165. Other courts have also held that a former employee may state a claim for relief under § 704(a) based on reprisal. See Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir.1978); Czarnowski v. Desoto, Inc., 518 F.Supp. 1252, 1257 (N.D.Ill.1981) (Flauiri, J.). We think these opinions correctly interpret Title VII in a way which furthers its remedial purposes. Section 704 was plainly written to protect employees who assert Title VII rights. If an employee asserts her rights after the relationship is over, her assertion nevertheless grows out of that relationship. “[T]he statute prohibits discrimination related to or arising out of an employment relationship, whether or not the person discriminated against is an employee at the time of the discriminatory conduct.” Pantchenko, 581 F.2d at 1055. If Pepe’s narrow reading of the statute were correct, employers could easily retaliate against former employees against whom they have discriminated. Section 704(a) was obviously written to prevent employers from chilling employees’ assertions of Title VII rights, and the section should be read broadly to protect former employees as well as current" }, { "docid": "13391972", "title": "", "text": "1817, 1824-25, 36 L.Ed.2d 668 (1973), also is applied in cases alleging retaliation for participation in title VII grievance procedures. See Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); Hochstadt v. Worchester Foundation, 425 F.Supp. 318, 324 (D.Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976); Aguirre v. Chula Vista Sanitary Service & Sani-Tainer, Inc., 542 F.2d 779, 781 (9th Cir. 1976). 8. In order to establish a prima facie case of retaliation in violation of 42 U.S.C. § 2000e-3 (1978), the plaintiff must establish: (1) statutorily-protected participation by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). “Statutorily-protected participation” by the employee includes the filing of employment discrimination charges with the EEOC. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005-06 (5th Cir. 1969). “Adverse employment action” by the employer includes, inter alia, discharging the employee, harassing or disciplining the employee, and giving poor recommendations or references to prospective employers of the employee. See Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) (discharge); Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (per curiam) (recommendation); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir. 1977) (reference); Hayden v. Chrysler Corp., 486 F.Supp. 557, 563 (E.D.Mich.1980) (harassment). “Causal connection” consists of evidence showing that a retaliatory motive played a part in the adverse employment action which includes establishing that the employer had actual or imputed knowledge of the employee’s statutorily-protected participation. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, - U.S. ——, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); Rogers v. McCall, 488 F.Supp. 689, 697-98 (D.C.D.C.1980). 9. If the plaintiff establishes a prima facie case of retaliation, under McDonnell Douglas Corp. v. Green, 411 U.S. 722, 802- 04, 93" }, { "docid": "17785984", "title": "", "text": "conclude that it does not apply to adverse employment references unless there are also other allegedly cognizable discriminatory acts that fall within Title VIÍ, e. g., a termination or a failure to promote. However, plaintiff does state a good cause of action under § 1981. The Tenth Circuit has recently held that advising a prospective employer that a former employee filed a sex discrimination charge against the prior employer violates § 704(a), 42 U.S.C. § 2000e-3(a) (1976). Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977). Similarly, in Pantchenko v. C. B. Dolge Co., 581 F.2d 1052 (2d Cir. 1978), at 4464-4466, the Second Circuit held that a plaintiff stated a cause of action under that section when he alleged that, in retaliation for his filing of discrimination charges with the Equal Employment Opportunity Commission, his former employer refused to furnish letters of recommendation for him. We have uncovered no authority indicating that discriminatory issuance of negative references could never transgress § 703(a)(1). . 42 U.S.C. § 2000e-2(a)(l) (1976) (emphasis supplied). . See Griggs v. Duke Power Co., supra note 43, 401 U.S. at 429, 91 S.Ct. at 853, 28 L.Ed.2d at 163. . 160 U.S.App.D.C. 14, 488 F.2d 1338 (1973). . Id. at 17, 488 F.2d at 1341. . Id. . Id. Former employees fall within the purview of § 703(a)(1). See Wetzel v. Liberty Mut. Ins. Co., supra note 19, 508 F.2d at 247; Hackett v. McGuire Bros., 445 F.2d 442, 445-446 (3d Cir. 1971). Moreover, Title VII provides for the filing of administrative charges and subsequent institution of civil actions by “persons aggrieved,” §§ 706(b), (f), 42 U.S.C. §§ 2000e-5(b), (f) (1976), and in determining aggrievement, reference is to be made to “the standing concepts articulated by the Supreme Court as ‘injury in fact’ and an interest ‘within the zone of those regulated by the statute or constitutional guarantee in question.’ ” Sibley Memorial Hosp. v. Wilson, supra note 47, 160 U.S.App.D.C. at 17 n.4, 488 F.2d at 1341 n.4, quoting Association of Data Processing Orgs. v. Camp, 397 U.S. 150, 152-153, 90 S.Ct." } ]

[ { "docid": "18836013", "title": "", "text": "interest in those funds. We do not address any of the other issues raised by the parties. III.STANDARD OF REVIEW The parties differ as to the standard of review to be applied in this case. Appellant Capital Factors urges us to apply a de novo standard, because a review of a summary judgment and a review of the bankruptcy court’s equitable powers involve only issues of law. The appellee maintains that, because we review here the bankruptcy court’s exercise of its equitable powers, we should apply a clearly erroneous standard or, at the very least, an abuse of discretion standard. Because the district court in reviewing the decision of a bankruptcy court functions as an appellate court, we are the second appellate court to consider this case. As a general rule, “[t]his Court’s standard of review with regard to questions of law, whether made by the bankruptcy court or by the district court, is de novo.” Equitable Life Assurance Soc. v. Sublett (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990). Because the district court (as an appellate court) makes no factual findings, our review of its decision is entirely de novo. Id. at 1384. We review the bankruptcy court’s factual determinations for clear error. Rush v. JLJ, Inc. (In re JLJ, Inc.), 988 F.2d 1112, 1116 (11th Cir.1993). Here, we consider the scope of the bankruptcy court’s equitable powers. We address only issues of law. Accordingly, we review de novo the conclusions of the bankruptcy court and the district court. See Shapiro v. Saybrook Manuf. Co. (In re Saybrook Mamif. Co.), 963 F.2d 1490, 1492 (11th Cir. 1992). IV.DISCUSSION We reject Capital Factors’ argument that the funds in its possession were not property of the estate under 11 U.S.C. § 541(a)(1). Section 541(a)(1) defines the property of the estate to include “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C.A. § 541(a)(1) (West 1993). This language plainly includes the funds held by Capital Factors, even though those funds were subject to Capital Factors’ security interest. Cf. United States v." } ]

[ { "docid": "18039374", "title": "", "text": "2011, Crumpton appealed the Bankruptcy Court’s February 15, 2011, order and September 9, 2011, order to the United States District Court for the Middle District of Florida. In an order entered on September 27, 2012, the District Court affirmed the Bankruptcy Court’s February 15, 2011, order, holding that Northlake’s election 'as an S corporation constituted reasonably equivalent value for the 2006 Transfer. In response to Crumpton’s contention that Northlake’s S- corporation election only benefited shareholders and not creditors, the District Court disagreed with the notion that creditors must necessarily benefit from a transaction in order for it to not be a fraudulent transfer. According to the District Court, as long as “the debtor’s unsecured creditors are not worse off because the debtor ... has received something reasonably equivalent to what the debtor has transferred, then no fraudulent transfer or conveyance has occurred.” Record, vol. 1, no. 18, at 281 (quoting In re Stewart Fin. Co., No. 03-30277, 2007 WL 1704423 at *4 (Bankr.M.D.Ga. June 8, 2007)). Because Northlake would have had to pay income taxes itself had it not elected to be an S corporation, the District Court concluded that the 2006 Transfer did not make Northlake or its creditors worse off and thus constituted a reasonably equivalent exchange of value. Finding that ground sufficient, the court did not address the question of whether the 2006 Transfer satisfied an antecedent debt owed under the Shareholders Agreement. The District Court also affirmed the Bankruptcy Court’s September 9, 2011, order, holding that Georgia’s illegal dividend statute could not be applied to Stephens because he was not a director of North-lake. Crumpton now appeals the District Court’s judgment. II. In reviewing bankruptcy court judgments, we sit as the second court of review. We review legal determinations made by either the bankruptcy court or the district court de novo. In re JLJ Inc., 988 F.2d 1112, 1116 (11th Cir.1993). We review the bankruptcy court’s findings of fact for clear error. Id. When reviewing a ruling on a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), we accept as true" }, { "docid": "2780065", "title": "", "text": "the bankruptcy court lacked the statutory authority to confirm the Second Amended Plan because the modifications were material and adverse with respect to Enron’s claims and interests; and (2) the modifications violate the equal treatment required by the Bankruptcy Code with respect to members of the same class of creditors. II. DISCUSSION In the bankruptcy context, we sit “as a ‘second court of review’ and thus ‘examine[] independently the factual and legal determinations of the bankruptcy court,’ ” employing the same standards of review as the district court. In re Optical Techs., Inc., 425 F.3d 1294, 1299-1300 (11th Cir.2005) (quoting In re Issac Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir. 2004)). We review legal conclusions by either the bankruptcy court or the district court de novo and the bankruptcy court’s findings of fact for clear error. In re Fin. Federated Title & Trust, Inc., 309 F.3d 1325, 1328-29 (11th Cir.2002). A. Material and Adverse Modifications Enron first argues that the bankruptcy court lacked the statutory authority to confirm the Second Amended Plan because the modifications were material and adverse with respect to Enron’s interests. A determination of materiality “is a mixed question of law and fact, and is, therefore, reviewed de novo.” See United States v. Miranda, 348 F.3d 1322, 1334 n. 15 (11th Cir.2003) (per curiam). An adversity determination is similarly a mixed question of law and fact, and we will review it de novo as well. The Bankruptcy Code requires that every holder of a claim or interest receive a court-approved written disclosure statement containing “adequate information” about a proposed plan before its vote on that plan may be solicited. 11 U.S.C. § 1126(b)(2). Even after the vote, a plan proponent may modify a plan before confirmation as long as the plan still satisfies all requirements concerning plan contents and the classification of claims and interests. 11 U.S.C. §§ 1127, 1122, 1123. After notice and a hearing, the bankruptcy court may deem a claim or interest holder’s vote for or against a plan as a corre sponding vote in relation to a modified plan unless the modification" }, { "docid": "15728668", "title": "", "text": "amended complaint that differed from those alleged in the original complaint, Orlick was not entitled to revoke her original waiver of jury trial. The case proceeded to a bench trial before the bankruptcy court. It found in favor of the bankruptcy trustee on the fraudulent transfer counts set forth as Counts I, II and III. It concluded that $1,167,037.19 in transfers from the debtor to Orlick were voidable both under the actual fraud and constructive fraud provisions. See Sections 548(a)(1)(A), (a)(1)(B). Furthermore, the bankruptcy court held that Orlick was not entitled as a matter of law to assert the affirmative defense of “for value and in good faith” found in Section 548(c) in defending herself against the three counts. After oral argument, the district court affirmed the order of the bankruptcy court in all respects. This appeal followed. II. STANDARD OF REVIEW As “the district court in reviewing the decision of a bankruptcy court functions as an appellate court, we are the second appellate court to consider this case.” Capital Factors, Inc. v. Empire for Him, Inc. (In re Empire for Him, Inc.), 1 F.3d 1156, 1159 (11th Cir.1993). We re view questions of law, whether made by the bankruptcy court or by the district court, under a de novo standard. Id. citing Equitable Life Assurance Soc. v. Sublets (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990). As the district court makes no fact findings in its function as an appellate court, our review is de novo. Id. at 1384. We review the findings of fact made by the bankruptcy court for clear error. Rush v. JLJ, Inc. (In re JLJ, Inc.), 988 F.2d 1112, 1116 (11th Cir.1993). III. DISCUSSION A Introduction Orlick raises four issues on appeal. We discuss only two: (1) whether the district court improperly denied her right to jury trial in granting the trustee’s motion to strike jury demand; and (2) whether the district court erred in holding, as a matter of law, that Orlick was not entitled to assert the affirmative defense of “for value and in good faith” found in Section 548(c) in" }, { "docid": "18739751", "title": "", "text": "Because the district court in reviewing the decision of a bankruptcy court functions as an appellate court, we are the second appellate court to consider this case. Capital Factors, Inc. v. Empire for Him, Inc., 1 F.3d 1156, 1159 (11th Cir.1993). Thus, this Court’s review with regard to determinations of law, whether made by the bankruptcy court or by the district court, is de novo. Equitable Life Assurance Soc. v. Sublett, 895 F.2d 1381, 1383 (11th Cir.1990). The district court makes no independent factual findings; accordingly, we review solely the bankruptcy court’s factual determinations under the “clearly erroneous” standard. Rush v. JLJ Inc., 988 F.2d 1112, 1116 (11th Cir.1993); Bankr.Rule 8013; Bankr.Rule 7052. Pursuant to Section 302(b) and Rule 1015(b), a bankruptcy court may in exercising its equitable discretion order substantive consolidation of cases involving two related debtors. 11 U.S.C. § 302(b); Rule 1015(b). Thus, we review an order of substantive consolidation for abuse of discretion. In re Giller, 962 F.2d 796, 799 (8th Cir.1992). IV. DISCUSSION A. Substantive Consolidation In arguing that the bankruptcy court erred in ordering substantive consolidation, appellant argues that joint administration should not alter the separate nature of the estates created by bankruptcy or constitute a factor for consideration in ordering substantive consolidation. For the reasons that follow, we conclude that the courts below applied incorrect legal standards and that it would be an abuse of discretion to order substantive consolidation on the record in this case. Section 302 of the Bankruptcy Code provides that spouses may file joint cases. 11 U.S.C. § 302(a). After the commencement of a joint case, the court shall determine the extent, if any, to which the debtors’ estates shall be consolidated. 11 U.S.C. § 302(b). Because this case presents an issue of first impression among the circuits and has been addressed by few bankruptcy decisions, we begin our analysis with an overview of the development of substantive consolidation case law. 1. Historical background of the East-group analysis Substantive consolidation traces its roots to the Bankruptcy Act of 1898. The Act then contained no express statutory authorization for consolidation, either" }, { "docid": "7688342", "title": "", "text": "was not authorized to review its subject matter jurisdiction de novo, holding instead that the confirmation order could be voided only “where there is a plain usurpation of power, when a court wrongly extends its jurisdiction beyond the scope of its authority.” Finova Capital Corp. v. Larson Pharmacy, Inc., No. 8:03-civ-255-T-24 TBM, slip op. at 13 (M.D.Fla. Oct. 6, 2003) (quotation marks and citations omitted). Finding no such usurpation and rejecting the Lessees’ due process and expired lease arguments, the district court refused to void the confirmation order. It held that the Fourth Amended Plan and the lease modifications it contained were binding on the Lessees. The Lessees now appeal the district court’s judgment. II. In the bankruptcy context, this court sits as a “second court of review” and thus “examines independently the factual and legal determinations of the bankruptcy court and employs the same standards of review as the district court.” In re Issac Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir.2004) (quotation marks and citation omitted). Generally, we review legal conclusions by either the bankruptcy court or the district court de novo. In re Financial Federated Title & Trust, Inc., 309 F.3d 1325, 1328-29 (11th Cir.2002). We review the bankruptcy court’s findings of fact for clear error. Id. at 1329. In considering the bankruptcy court’s interpretation of the effect of its own order, we apply a different standard of review. While we have not definitively articulated that standard, we have said that “we are reluctant to disturb a bankruptcy court’s judgment interpreting its own earlier order,” and that the “bankruptcy judge who has presided over a case from its inception is in the best position to clarify any apparent inconsistencies in the court’s rulings.” In re Ranch House of Orange-Brevard, Inc., 773 F.2d 1166, 1168 (11th Cir.1985). The other circuits that have considered this question have uniformly agreed that our “reluctante] to disturb a bankruptcy court’s judgment” in this context is akin to the reluctance we exhibit when exercising abuse of discretion review. See In re Consolidated Indus. Corp., 360 F.3d 712, 716 (7th Cir.2004) (“We will not" }, { "docid": "17569419", "title": "", "text": "$16,065.00, alleging that the payments were avoidable as transfers under 11 U.S.C. § 547(b). BOA admitted the total of $16,065.00 was paid to Egidi’s MBNA account by payments made on August 8, 10, and 12, 2006, but MBNA, now BOA, did not know the source of the payments and believed they may have been bank-to-bank transfers. The Trastee moved for summary judgment arguing that MBNA, now BOA, received a preferential transfer. The Bankruptcy Court held that the transfers were preferences that could be avoided by the trustee and granted summary judgment in favor of the trustee. The Bankruptcy Court entered judgment against BOA in the total amount of the transfers, $16,065.00. BOA appealed to the District Court, which affirmed the Bankruptcy Court’s decision in September 2009. BOA now appeals to this Court challenging the legal conclusions of the Bankruptcy Court that were affirmed by the District Court. II. “In the [Bankruptcy context, this [C]ourt sits as a ‘second court of review’ and thus ‘examines independently the factual and legal determinations of the [B]ankruptcy [C]ourt and employs the same standards of review as the [District [C]ourt.’ ” Finova Capital Corp. v. Larson Pharmacy, Inc. (In re Optical Tech., Inc.), 425 F.3d 1294, 1299-1300 (11th Cir. 2005) (quoting Barrett Dodge Chrysler Plymouth, Inc. v. Cranshaw (In re Issac Leaseco, Inc.), 389 F.3d 1205, 1209 (11th Cir.2004)). This Court “review[s] de novo a grant of summary judgment.” Dzikowski v. Northern Trust Bank of Fla., N.A. (In re Prudential of Fla. Leasing, Inc.), 478 F.3d 1291, 1296 (11th Cir.2007). This Court also “reviews de novo the question of law whether a debtor’s interest is property of the bankruptcy estate.” Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir.2004). III. “A preference is ‘a transfer that enables a creditor to receive payment of a greater percentage of his claim against the debtor than he would have received if the transfer had not been made and he had participated in the distribution of the assets of the bankruptcy estate.’ ” In re Issac Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir.2004) (quoting Union" }, { "docid": "15940627", "title": "", "text": "to the United States District Court for the Southern District of Florida. On appeal, Appellant argued the bankruptcy court erred in finding the ICRUA was exempt from the bankruptcy estate as either a spendthrift trust or a support trust. The district court affirmed in part, finding the ICRUA was exempt from the bankruptcy estate based on its spendthrift provision. Although it did not need to reach the bankruptcy court’s other ground for exemption, the district court indicated the trust likely would not qualify as a support trust because the ICRUA provided for payment of a fixed sum to Appellee each year regardless of the amount needed for her support. Having not been raised on appeal, the issue of whether the trust qualified as an exempt annuity was not addressed by the district court. This appeal followed. II. STANDARD OF REVIEW In bankruptcy appeals, legal determinations of the bankruptcy court and the district court are subject to de novo review. Bush v. JLJ, Inc. (In re JLJ, Inc.), 988 F.2d 1112, 1116 (11th Cir.1993). III. DISCUSSION An estate in bankruptcy consists of all interests in property possessed by the debtor at the time of her bankruptcy filing. 11 U.S.C. § 541(a)(1) (1994). Where there is a restriction on transfer of the debtor’s interests under applicable non-bankruptcy law, however, such restriction remains effective even in bankruptcy. 11 U.S.C. § 541(c)(2). As a result, spendthrift and support trusts are excluded from a debt- or’s bankruptcy estate to the extent they are protected from creditors under applicable state law. The state law applicable in this case is the law of the State of Florida. We will examine in turn whether the ICRUA qualifies as either a spendthrift trust or a support trust under Florida law. A. The ICRUA as a Spendthrift Trust In Florida, trusts containing valid spendthrift provisions are protected from the reach of creditors, so long as the beneficiaries cannot exercise dominion over the trust assets. See generally Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603, 605 (Fla.1947) (en banc) (recognizing the validity of spendthrift trusts); Croom v. Ocala Plumbing &" }, { "docid": "23232253", "title": "", "text": "issue. Specifically, while Internacional did have legal title, the district court held that the Trustee also would be required show that In-ternacional actually had control over those funds, as the record here only indicated that one of the Debtor’s principals had made transfers from the Internacional account for purposes unrelated to either the Debtor or Internacional. The Trustee timely appeals. STANDARD OF REVIEW As the second court to review the bankruptcy court’s judgment, we examine the bankruptcy court’s order independently of the district court. In re Bilzerian, 153 F.3d 1278, 1281 (11th Cir.1998). Specifically, we review determinations of law made by either the district or bankruptcy court de novo, while reviewing the bankruptcy court’s findings of fact for clear error. In re Int'l Admin. Servs., 408 F.3d 689, 699 (11th Cir.2005); In re Fin. Federated Title & Trust, Inc., 309 F.3d 1325, 1328-29 (11th Cir.2002). The bankruptcy court’s findings of fact are not clearly erroneous unless, in light of all the evidence, we are left with the definite and firm conviction that a mistake has been made. In re Cox, 338 F.3d 1238, 1241 (11th Cir. 2003). DISCUSSION Under 11 U.S.C. § 544(b), a trustee in bankruptcy may “step into the shoes” of an unsecured creditor and void a transfer of an interest in the debtor’s property that the unsecured creditor would have the power to void under federal or state law. See In re Graham, 747 F.2d 1383, 1386-87 (11th Cir.1984). In addition, Florida law provides that a transfer made by a debtor is voidable as fraudulent where the debtor made the transfer: (i) -without receiving reasonably equivalent value in exchange; (ii) and reasonably should have believed it would incur debts beyond its ability to pay as they came due. See Fla. Stat. § 726.105(l)(b). In order to exercise these powers, the Trustee must prove, in relevant part, that the transfer at issue involved a property interest of the debtor. 11 U.S.C. § 544(b) (“the trustee may avoid any transfer of an interest of the debtor in property... ”); see also In re Levine, 134 F.3d 1046, 1053 (11th" }, { "docid": "18739750", "title": "", "text": "estate of Mrs. Reider and not to any other parties. On November 5, 1990, the debtors filed a formal motion to require separate distribution of each estate, and the accompanying brief responded at length on the substantive consolidation issue. On November 20, 1990, FDIC filed a further brief on the issue. On January 28, 1991, the Reiders filed a further brief on the issue, and filed an amended schedule separating the assets and liabilities of the two estates. On Feb. 5, 1991, the FDIC filed a final brief on the issue. On December 20, 1991, the bankruptcy court issued an order substantively consolidating the two estates. The court also denied the motion to increase Ida Reider’s exemptions because she had already received the one exemption to which she was entitled. The court sua sponte reconsidered its prior order denying James Reider’s claim for exemption and allowed him a $5,400 exemption to be paid out of the proceeds of the property. The district court affirmed both issues. Mrs. Reider appeals. We reverse. III. STANDARD OF REVIEW Because the district court in reviewing the decision of a bankruptcy court functions as an appellate court, we are the second appellate court to consider this case. Capital Factors, Inc. v. Empire for Him, Inc., 1 F.3d 1156, 1159 (11th Cir.1993). Thus, this Court’s review with regard to determinations of law, whether made by the bankruptcy court or by the district court, is de novo. Equitable Life Assurance Soc. v. Sublett, 895 F.2d 1381, 1383 (11th Cir.1990). The district court makes no independent factual findings; accordingly, we review solely the bankruptcy court’s factual determinations under the “clearly erroneous” standard. Rush v. JLJ Inc., 988 F.2d 1112, 1116 (11th Cir.1993); Bankr.Rule 8013; Bankr.Rule 7052. Pursuant to Section 302(b) and Rule 1015(b), a bankruptcy court may in exercising its equitable discretion order substantive consolidation of cases involving two related debtors. 11 U.S.C. § 302(b); Rule 1015(b). Thus, we review an order of substantive consolidation for abuse of discretion. In re Giller, 962 F.2d 796, 799 (8th Cir.1992). IV. DISCUSSION A. Substantive Consolidation In arguing that the bankruptcy" }, { "docid": "15940626", "title": "", "text": "1999, Appellee filed a voluntary petition for Chapter 7 bankruptcy. Appellant Deborah Menotte (Appellant) was appointed as the Chapter 7 trustee. In her bankruptcy petition, Appellee listed secured and unsecured claims totaling $110,023.53. Athough Appellee acknowledged her interest in the ICRUA, no value for the interest was included as part of her asset calculation. Rather, Appellee claimed her interest in the trust was exempt from the bankruptcy estate. Appellant objected, arguing self-funded trusts are not insulated from the claims of creditors. On July 26, 2000, the bankruptcy court overruled Appellant’s objection to the claimed exemption. Based on the presence of the spendthrift clause, the bankruptcy court concluded Appellee’s interest in the trust could not be attached by her creditors. As an additional ground for exemption, the bankruptcy court indicated the trust also qualified as a support trust, which is a type of trust established to provide for a beneficiary’s needs. The bankruptcy court rejected Appellee’s alternative argument that her interest in the trust constituted an exempt annuity. On November 8, 2.001, Appellant filed an appeal to the United States District Court for the Southern District of Florida. On appeal, Appellant argued the bankruptcy court erred in finding the ICRUA was exempt from the bankruptcy estate as either a spendthrift trust or a support trust. The district court affirmed in part, finding the ICRUA was exempt from the bankruptcy estate based on its spendthrift provision. Although it did not need to reach the bankruptcy court’s other ground for exemption, the district court indicated the trust likely would not qualify as a support trust because the ICRUA provided for payment of a fixed sum to Appellee each year regardless of the amount needed for her support. Having not been raised on appeal, the issue of whether the trust qualified as an exempt annuity was not addressed by the district court. This appeal followed. II. STANDARD OF REVIEW In bankruptcy appeals, legal determinations of the bankruptcy court and the district court are subject to de novo review. Bush v. JLJ, Inc. (In re JLJ, Inc.), 988 F.2d 1112, 1116 (11th Cir.1993). III. DISCUSSION" }, { "docid": "18039375", "title": "", "text": "itself had it not elected to be an S corporation, the District Court concluded that the 2006 Transfer did not make Northlake or its creditors worse off and thus constituted a reasonably equivalent exchange of value. Finding that ground sufficient, the court did not address the question of whether the 2006 Transfer satisfied an antecedent debt owed under the Shareholders Agreement. The District Court also affirmed the Bankruptcy Court’s September 9, 2011, order, holding that Georgia’s illegal dividend statute could not be applied to Stephens because he was not a director of North-lake. Crumpton now appeals the District Court’s judgment. II. In reviewing bankruptcy court judgments, we sit as the second court of review. We review legal determinations made by either the bankruptcy court or the district court de novo. In re JLJ Inc., 988 F.2d 1112, 1116 (11th Cir.1993). We review the bankruptcy court’s findings of fact for clear error. Id. When reviewing a ruling on a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), we accept as true all allegations in the complaint and construe them in the light most favorable to the nonmov-ing party. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). Because there are no findings of fact to be made from a judgment on the pleadings, we review the legal significance accorded to the facts de novo. Elston v. Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1405 (11th Cir.1993). A fraudulent transfer occurs when (1) a debtor was insolvent on the date that the transfer was made or became insolvent as a result of the transfer; (2) the debtor received less than a reasonably equivalent value in exchange for the transfer; and (3) the transfer was made on or within two years before the date the debtor filed the petition for bankruptcy. See 11 U.S.C. § 548(a)(1). The parties do not dispute on appeal whether the 2006 Transfer was made within two years of the petition filing or whether Northlake was insolvent on the date of the transfer or became insolvent as a result of" }, { "docid": "16366175", "title": "", "text": "and blanket liens that Tedder’s companies acquired on IAS’ assets and future income, all of IAS’ resources were encumbered and beyond the reach of creditors. Based upon the evidence, the bankruptcy court entered a money judgment for the Trustee, and against IBT and SCSD in the amount of $1,679,251.30, which included interest. IBT and SCSD appealed to the district court, which affirmed the bankruptcy court’s ruling. The Defendants then filed the instant appeal. II. Discussion A Standard of Review Our Court has jurisdiction over this matter under 28 U.S.C. § 158(d). “As the ‘second court of review of a bankruptcy court’s judgment,’ ” we independently examine the factual and legal determinations of the bankruptcy court and employ the same standards of. review as the district court. In re Issac Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir.2004) (quoting In re Club Assoc., 951 F.2d 1223, 1228 (11th Cir.1992))., As the district court made no factual findings in its function as an appellate court, our review is de novo. In re Sublett, 895 F.2d 1381, 1384 (11th Cir.1990). . We review the findings of fact made by the bankruptcy court for clear error. In re JLJ Inc., 988 F.2d 1112, 1116 (11th Cir.1993). A factual finding is not clearly erroneous unless “this court, after reviewing all of the evidence, [is] left with the definite and firm conviction that a mistake , has been committed.” Lykes Bros., Inc. v. United States Army Corps of Engr’s, 64 F.3d 630, 634 (11th Cir.1995) (internal quotation marks omitted). This Court conducts a de novo review of “determinations of law, whether from the bankruptcy court or the district court.” In re Bilzerian, 100 F.3d 886, 889 (11th Cir.1996) (per curiam); In re Sublett, 895 F.2d at 1383 (11th Cir.1990). B. Statute of Limitations and the Filing of the Complaint One of the primary issues of the appeal concerns whether the Trustee let the limitations period run prior to filing suit. IBT and SCSD argue that the statute of limitations set forth in 11 U.S.C. § 546(a)(1) had lapsed before the Trustee filed this adversary proceeding on" }, { "docid": "19259289", "title": "", "text": "must be an identity of issues between the first and second actions; (2) the duplicated issue must have been actually and necessarily litigated in the prior court proceeding; (3) determination of the issue must have been essential to the prior judgment; and (4) the party to be estopped must have had a full and fair opportunity to litigate the issue in the course of the earlier proceeding. See In re Graham, 191 B.R. 489, 495 (Bankr.N.D.Ga.1996) (Drake, J.) (drawing four individual elements from various decisions of Georgia courts); In re Gunnin, 227 B.R. 332, 336 (Bankr.N.D.Ga.1998) (Bihary, J.). The bankruptcy court in the instant case applied the above four factors to Sterling’s collateral estoppel claim. Whelan, 236 B.R. at 501. The district court reviews a bankruptcy court’s factual findings for clear error. See Fed.R.Bankr.P. 8013 (“Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses”); see also In re Club Associates, 951 F.2d 1223, 1228 (11th Cir.1992). “On an appeal the district court ... may affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree or remand with instructions for further proceedings.” Fed.R.Bankr.P. 8013. The bankruptcy court’s determinations of law are reviewed by the district court de novo. See In re Goerg, 930 F.2d 1563, 1566 (11th Cir.1991); In re JLJ, Inc., 988 F.2d 1112, 1116 (11th Cir.1993). The court will review the bankruptcy court’s findings as to each element of the Georgia collateral estoppel test in turn. 1. Identity of Issues The bankruptcy court initially addressed whether there was a proper identity of issues between the judgment of the state court and the claims raised in Sterling’s bankruptcy appeal. As to Sterling’s claims brought pursuant to 11 U.S.C. § 523(a)(4) and (a)(6), the court found no identity of issues. Whelan, 236 B.R. at 501. The court reasoned that the claims asserted against defendants Whelan and Schaner in the state litigation contained neither elements of “fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny,”" }, { "docid": "15728669", "title": "", "text": "Him, Inc. (In re Empire for Him, Inc.), 1 F.3d 1156, 1159 (11th Cir.1993). We re view questions of law, whether made by the bankruptcy court or by the district court, under a de novo standard. Id. citing Equitable Life Assurance Soc. v. Sublets (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990). As the district court makes no fact findings in its function as an appellate court, our review is de novo. Id. at 1384. We review the findings of fact made by the bankruptcy court for clear error. Rush v. JLJ, Inc. (In re JLJ, Inc.), 988 F.2d 1112, 1116 (11th Cir.1993). III. DISCUSSION A Introduction Orlick raises four issues on appeal. We discuss only two: (1) whether the district court improperly denied her right to jury trial in granting the trustee’s motion to strike jury demand; and (2) whether the district court erred in holding, as a matter of law, that Orlick was not entitled to assert the affirmative defense of “for value and in good faith” found in Section 548(c) in defending against the fraudulent transfer counts of I, II and III. B. Right to Jury Trial Orlick demanded a jury trial in her answer to the trustee’s amended complaint. At hearing on the trustee’s motion to strike her jury demand, the bankruptcy court found, and the district court agreed, that the amended complaint raised no new issues upon which Orlick could demand a jury. We disagree. Fed.R.Civ.P. 38(b) provides in relevant part: Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and (2) filing the demand as required in Rule 5(d). Such demand may be indorsed upon a pleading of the party. In her memorandum in opposition to the trustee’s motion to strike jury demand, Orlick contended that: The Trustee asserts, incorrectly, that the Amended Complaint did not add" }, { "docid": "19341435", "title": "", "text": "(11th Cir.2011) (citing 11 U.S.C. § 727(b)). But “this ‘fresh start’ policy is only available to the ‘honest but unfortunate debtor.’ ” Id. (quoting In re Fretz, 244 F.3d 1323, 1326 (11th Cir.2001)). “To ensure that only the honest but unfortunate debtors receive the benefit of discharge, Congress enacted several exceptions to § 727(b)’s general rule of discharge.” Id. On appeal, the Kanes again challenge the bankruptcy court’s application of several discharge exceptions. First, the Kanes jointly claim that the bankruptcy court wrongfully excepted the state court judgment from discharge under 11 U.S.C. § 523(a)(6), because, they assert, the state court judgment did not arise from a “willful and malicious injury.” In the second place, Harley Kane argues that the bankruptcy court wrongfully denied his discharge by joint application of § 727(a)(7) and § 727(a)(2), since he claims not to have transferred the assets of the Kane Firm with the intent to hinder, delay, or defraud the Stewart Firms. We are not persuaded by either argument. A. According to the terms of 11 U.S.C. § 523(a)(6), a bankruptcy court may prevent a debtor from discharging 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). In reviewing a bankruptcy court’s judgment, we independently examine the bankruptcy court’s factual findings for clear error and review de novo the legal conclusions of both the bankruptcy and district courts. In re JLJ Inc., 988 F.2d 1112, 1116 (11th Cir.1993). A bankruptcy court’s determination that an injury was “willful and malicious” is a factual finding that we review only for clear error. See Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1264 (11th Cir.1988), abrogated on other grounds by Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Moreover, in a bankruptcy court, a creditor must prove the applicability of § 523(a)(6) by a preponderance of the evidence. Grogan, 498 U.S. at 291, 111 S.Ct. 654. Thus, on appeal, we review de novo any legal interpretation of the terms “willful” and “malicious,” but we review only" }, { "docid": "23232252", "title": "", "text": "in name was only slight; (ii) the Debtor’s tax identification number was identical to the one listed on the Interna-cional account; and (iii) the payments from the account at issue were authorized by one of the same principals who controlled the Debtor. The bankruptcy court based its determination largely on testimony from the Trustee that because the Debt- or’s principals were unavailable at the time of filing, the name of the Debtor may have been misspelled in the bankruptcy petition. The district court reversed the bankruptcy court, finding that the record did not contain sufficient evidence to support a finding that Internacional was simply a misnomer for International. Comparing the record in this case to other decisions in which the petition erroneously misnamed the debtor, the district court found that there was insufficient evidence to conclude that “International” was dearly a misnomer for “Internacional.” Moreover, the district court held in the alternative that even if International was erroneously substituted for Internacional, the Trustee did not establish that Internacional controlled the funds in the account at issue. Specifically, while Internacional did have legal title, the district court held that the Trustee also would be required show that In-ternacional actually had control over those funds, as the record here only indicated that one of the Debtor’s principals had made transfers from the Internacional account for purposes unrelated to either the Debtor or Internacional. The Trustee timely appeals. STANDARD OF REVIEW As the second court to review the bankruptcy court’s judgment, we examine the bankruptcy court’s order independently of the district court. In re Bilzerian, 153 F.3d 1278, 1281 (11th Cir.1998). Specifically, we review determinations of law made by either the district or bankruptcy court de novo, while reviewing the bankruptcy court’s findings of fact for clear error. In re Int'l Admin. Servs., 408 F.3d 689, 699 (11th Cir.2005); In re Fin. Federated Title & Trust, Inc., 309 F.3d 1325, 1328-29 (11th Cir.2002). The bankruptcy court’s findings of fact are not clearly erroneous unless, in light of all the evidence, we are left with the definite and firm conviction that a mistake has" }, { "docid": "14678204", "title": "", "text": "OPINION AND ORDER STEELE, District Judge. This matter comes before the Court on the timely appeal of the Bankruptcy Court’s Order Confirming Chapter 11 Plan (Alternative (B)) of Third Amended Plan (Doc. # 528), the Order denying Motion for Reconsideration and Clarification of Order on Confirmation of Third Amended Plan, as modified (Doc. # 540), and the Amended Order on Confirmation of Third Amended Plan, as Modified (Doc. # 544) entered by the Honorable Alexander L. Paskay. See In re Henderson, 321 B.R. 550 (Bankr.M.D.Fla.2005). The following briefs have been filed in this matter: (1) appellants’ Initial Brief (Dist.Doc. # 11); (2) appellee’s Brief of Appellee (Dist.Doc. # 13); (3) appellants’ Reply Brief (Dist. Doc. # 26); (4) Joann Henderson’s Answer Brief (Dist.Doc. # 30); and (5) appellants’ Reply to Mrs. Hendeson’s Answer Brief (Dist.Doc. #33). Appellants also filed a Notice of Reliance Upon Additional Authority (Dist.Doc. # 34). The Court heard oral arguments on March 20, 2006. I. The United States District Court functions as an appellate court in reviewing decisions of the United States Bankruptcy Court. In re Colortex Indus., Inc., 19 F.3d 1371, 1374 (11th Cir.1994). The legal conclusions of the Bankruptcy Court are reviewed de novo, In re JLJ, Inc., 988 F.2d 1112, 1116 (11th Cir.1993), while findings of fact are reviewed for clear error. Fed. R. Bankr.P. 8013; In re Thomas, 883 F.2d 991, 994 (11th Cir.1989), cert. denied, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). A finding of fact is clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” Crawford v. Western Elec. Co., Inc., 745 F.2d 1373, 1378 (11th Cir.1984) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Whether a reorganization plan violates the absolute priority rule is a question of law. In re Armstrong World Indus., 432 F.3d 507, 511 (3d Cir.2005). II. On August 29, 2002, James Bronce Henderson (Henderson, appellee or Debt- or) filed" }, { "docid": "9985598", "title": "", "text": "relief agency” as defined by 11 U.S.C. § 101(12A). The court also referred the matter to the office of the United States Attorney for possible criminal prosecution and to the Florida Bar for further disciplinary proceedings. The district court affirmed the bankruptcy court’s decision, concluding that the surrounding circumstances revealed at the evidentiary hearing supported the bankruptcy court’s findings. Appellants only appeal the holding that they perpetrated fraud on the court by ghostwriting Hood’s Chapter 13 petition in violation of Florida Rules of Professional Conduct 4 — 3.3(a)(1) and 4 — 8.4(c), and 18 U.S.C. § 157(3). II. “In the bankruptcy context, this court sits as a second court of review and thus examines independently the factual and legal determinations of the bankruptcy court and employs the same standards of review as the district court.” In re Optical Techs., Inc., 425 F.3d 1294, 1299-1300 (11th Cir.2005) (internal quotation marks omitted). We review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. In re Englander, 95 F.3d 1028, 1030 (11th Cir.1996) (per curiam). “Neither the district court nor this court may make independent factual findings.” Id. A bankruptcy court’s imposition of sanctions is reviewed for an abuse of discretion. In re Mroz, 65 F.3d 1567, 1571 (11th Cir.1996). ; Bankruptcy fraud is a criminal matter in which federal district courts have original jurisdiction. 18 U.S.C. § -3231; see In re Hipp, 895 F.2d 1503, 1518 (5th Cir.1990). In the event that a bankruptcy judge has “reasonable grounds” for believing that a party committed bankruptcy fraud in violation of 18 U.S.C. § 157(3), the judge “shall report [the case] to the appropriate United States attorney.” 18 U.S.C. § 3057(a). Attorneys who practice before Florida courts are governed by the Florida Rules of Professional Conduct. R. Regulating Fla. Bar 1-10.1, 3-4.1. The Florida Rules provide that “[a] lawyer shall not ... make a false statement of fact or law to a tribunal,” id. at 4-3.3(a)(l), and “shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” id. at 4-8.4(c). The Rules explain, however, that" }, { "docid": "2780064", "title": "", "text": "by the addition of § 12.1, removed this temporal limitation at the last minute and allowed the examiner to continue his investigation and potentially to seek recharacterization of Enron’s already fully paid secured claim post-confirmation. Enron argued that this plan modification materially and adversely affected Enron’s interest, and thus, that Enron was statutorily entitled to another disclosure statement and to re-vote its equity interests before confirmation of the Second Amended Plan. In essence, Enron argued that confirmation of the First Amended Plan would have brought finality to Enron’s claims and interest in New Power, whereas confirmation of the Second Amended Plan rendered them uncertain. Enron further argued that the new § 5.20 violates the Bankruptcy Code’s non-discrimination requirement because it allows interim distributions to other Class 9 equity interest holders while Enron must await completion of the examiner’s investigation before receiving distributions. After a de novo review of the record in light of these arguments, the district court affirmed the bankruptcy court’s confirmation of the plan. On appeal to us, Enron again argues that (1) the bankruptcy court lacked the statutory authority to confirm the Second Amended Plan because the modifications were material and adverse with respect to Enron’s claims and interests; and (2) the modifications violate the equal treatment required by the Bankruptcy Code with respect to members of the same class of creditors. II. DISCUSSION In the bankruptcy context, we sit “as a ‘second court of review’ and thus ‘examine[] independently the factual and legal determinations of the bankruptcy court,’ ” employing the same standards of review as the district court. In re Optical Techs., Inc., 425 F.3d 1294, 1299-1300 (11th Cir.2005) (quoting In re Issac Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir. 2004)). We review legal conclusions by either the bankruptcy court or the district court de novo and the bankruptcy court’s findings of fact for clear error. In re Fin. Federated Title & Trust, Inc., 309 F.3d 1325, 1328-29 (11th Cir.2002). A. Material and Adverse Modifications Enron first argues that the bankruptcy court lacked the statutory authority to confirm the Second Amended Plan because the" }, { "docid": "19259290", "title": "", "text": "1223, 1228 (11th Cir.1992). “On an appeal the district court ... may affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree or remand with instructions for further proceedings.” Fed.R.Bankr.P. 8013. The bankruptcy court’s determinations of law are reviewed by the district court de novo. See In re Goerg, 930 F.2d 1563, 1566 (11th Cir.1991); In re JLJ, Inc., 988 F.2d 1112, 1116 (11th Cir.1993). The court will review the bankruptcy court’s findings as to each element of the Georgia collateral estoppel test in turn. 1. Identity of Issues The bankruptcy court initially addressed whether there was a proper identity of issues between the judgment of the state court and the claims raised in Sterling’s bankruptcy appeal. As to Sterling’s claims brought pursuant to 11 U.S.C. § 523(a)(4) and (a)(6), the court found no identity of issues. Whelan, 236 B.R. at 501. The court reasoned that the claims asserted against defendants Whelan and Schaner in the state litigation contained neither elements of “fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny,” as required by § 523(a)(4), nor elements of “willful and malicious injury ... to another entity or to the property of another entity” as required by § 523(a)(6). Id. The court accordingly denied Sterling’s summary judgment motion as to its 11 U.S.C. § 523(a)(4) and (a)(6) claims and continued to consider only its § 523(a)(2) claim. In the instant appeal, Sterling argues the applicability of the doctrine of collateral estoppel only as to its claim for an exception to discharge pursuant to 11 U.S.C. § 523(a)(2)(A); it appears that Sterling has abandoned on appeal its original assertion of an entitlement to relief under § 523(a)(4) and (a)(6). The court will accordingly construe the instant appeal to assert only that the bankruptcy court erred in denying Sterling’s motion for summary judgment as to its claim brought pursuant to 11 U.S.C. § 523(a)(2), The bankruptcy court acknowledged that Sterling’s fraud claim brought in state court alleged elements sufficient to establish a claim for fraud under 11 U.S.C. § 523(a)(2)(A). Whelan, 236 B.R. at 502. In order to" } ]

[ { "docid": "1862721", "title": "", "text": "was error to find an unfair labor practice “without considering the specific relevancy of the requested information to actual bargaining between the parties; and (2) that the record does not disclose that the linked names and salaries were relevant to bargaining between the parties.” In an answer filed by the Board, it requests us to enforce its order, which of course we have jurisdiction to do, under § 10(f) of the Act, as amended, 61 Stat. 148. In the instant case petitioner concedes that the matters with respect to which the Board found the linked data might have been useful are proper and even mandatory subjects of bargaining under the Act. E. g., J. H. Allison & Co., 1946, 70 N.L.R.B. 377, enforcement granted 6 Cir., 1948, 165 F.2d 766, 3 A.L.R.2d 990, certiorari denied 1948, 335 U.S. 814, 69 S.Ct. 31, 93 L.Ed. 369 (merit increases) ; Inland Steel Co., 1948, 77 N.L.R.B. 1, enforcement granted 7 Cir., 1948, 170 F.2d 247, 12 A.L.R.2d 240, certiorari denied 1949, 336 U.S. 960, 69 S.Ct. 887, 93 L.Ed. 1112 (pension plan); Developments in the Law — The Taft-Hartley Act, 64 Harv.L.Rev. 781, 826-27 (1951). Cf. W. W. Cross & Co., v. N. L. R. B., 1 Cir., 1949, 174 F.2d 875 (group insurance). In administering the Act, the Board has for some time necessarily inquired into the processes of collective bargain ing. It has done so with respct to the issue raised in the instant case, at least since 1942. Aluminum Ore Co., 1942, 39 N.L.R.B. 1286, 1296-1297, enforcement granted 7 Cir., 1942, 131 F.2d 485, 147 A.L.R. 1. In dozens of cases it has ordered the employer to furnish the union detailed data with respect to individual salaries, merit increases, bonuses, dates of employment, job classifications, and the like. E. g., J. H. Allison & Co., supra; National Grinding Wheel Co., Inc., 1948, 75 N.L.R.B. 905, 935-937; Dixie Mfg. Co., Inc., 1948, 79 N.L.R.B. 645, 658, enforcement granted 6 Cir., 1950, 180 F.2d 173; Vanette Hosiery Mills, 1948, 80 N.L.R.B. 1116; General Controls Co., 1950, 88 N.L.R.B. 1341, 1343, 1354-1355;" } ]

[ { "docid": "21234660", "title": "", "text": "FRIENDLY, Circuit Judge. This is a proceeding by The Fafnir Bearing Company to review an order of the National Labor Relations Board, 146 N.L.R.B. No. 179 (1964), finding that Fafnir had violated § 8(a) (1) and (5) of the National Labor Relations Act by refusing to permit the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 133, to perform independent time studies on jobs involved in grievances under the parties’ collective bargaining agreement; the Board has cross-petitioned for enforcement. The union, which had filed the pertinent charge, seeks leave to intervene. The company and the Board oppose it, the Board suggesting that we grant the union leave to file a brief as amicus curiae. We deny the motion and grant such leave. Although courts of appeals have permitted a charging person to intervene in a proceeding brought by the Labor Board for enforcement of an order stemming from the charge or a proceeding brought by the condemned party to review such an order, § 10(e) and (f), see, e. g., West Texas Utilities Co. v. NLRB, 87 U.S.App.D.C. 179, 184 F.2d 233 (1950), cert, denied, 341 U.S. 939, 71 S.Ct. 999, 95 L.Ed. 1366 (1951); Kear-ney & Treeker Corp. v. NLRB, 210 F.2d 852 (7 Cir. 1954), cert, denied, 348 U.S. 824, 75 S.Ct. 38, 99 L.Ed. 649 (1954), all opinions of such courts discussing the issue that have been cited to us have ruled against intervention. See Aluminum Ore Co. v. NLRB, 131 F.2d 485, 488 (7 Cir. 1942); Stewart Die Casting Corp. v. NLRB, 132 F.2d 801 (7 Cir. 1942); Haleston Drug Stores, Inc. v. NLRB, 190 F.2d 1022 (9 Cir. 1950), cert, denied, 342 U.S. 815, 72 S.Ct. 29, 96 L.Ed. 616 (1951); NLRB v. Retail Clerks International Ass’n, 243 F.2d 777, 783 (9 Cir. 1956); Amalgamated Meat Cutters, etc. v. NLRB, 267 F.2d 169 (1 Cir.), cert, denied sub nom. Geilich Tanning Co. v. Amalgamated Meat Cutters, 361 U.S. 863, 80 S.Ct. 121, 4 L.Ed.2d 104 (1959). Since the issue has not been decided in this circuit, and the union contends that" }, { "docid": "4023100", "title": "", "text": "in the letter that it needed the information to determine whether unit work had been transferred from the Clark Street offices to the Bagley Building, and to enable it to determine whether to file additional grievances, file Labor Board charges or to seek contract modifications. Respondent rejected the April 20th request for the same reasons that it rejected the previous requests. It was on the basis of the Respondent’s denial of the Union’s request for information contained in the letter of April 20, 1966, that the General Counsel based the charges of violation of § 8(a) (5) and (1) of the Act. The Trial Examiner found that the Union, by its letter of April 20, 1966, requested information relevant to issues about which the parties were obligated to bargain, and that the Respondent’s refusal to supply the requested information was a violation of § 8(a) (5) and (1) of the Act. The Trial Examiner recommended that Respondent be ordered to provide the requested information. The Board adopted the findings, conclusions and recommended order of the Trial Examiner. In addition the Board ordered the posting of appropriate notices. Like the controlling facts, the basic principles of law to be applied are not here in dispute. An employer has a duty to provide, upon request, information relevant to bargainable issues. N. L. R. B. v. Truitt Mfg. Co., 351 U.S. 149, 153, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); N. L. R. B. v. Acme Industrial Co., 385 U.S. 432, 435-436, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). Where the requested information concerns wages and related information for employees in the bargaining unit, the information is presumptively relevant to bargainable issues'. Curtiss-Wright Corp. v. N. L. R. B., 347 F.2d 61, 69 (3rd Cir.1965); Timkin Roller Bearing Co. v. N. L. R. B. 325 F.2d 746, 750, 2 A.L.R.3d 868 (6th Cir.1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964). Where the request is for information concerning employees outside the bargaining unit, the Union must show that the requested information is relevant to bargainable issues. N. L. R." }, { "docid": "23700274", "title": "", "text": "particular job. The reverse side is a printed form listing 11 ‘job factors,’ and blank spaces opposite each for filling in the appropriate ‘degree’ and the ‘basis of rating.’ The sum of 11 ‘degrees’ 3 gives the total rating of the job, which in turn determines the wage. The ‘basis of rating’ on each factor is a sentence or two explaining the degree assigned. The 11 factors are ‘scholastic requirements,’ ‘previously related experience,’ ‘qualifying period,’ ‘scope of duties,’ ‘initiative exercised,’ ‘frequence of verification,’ ‘contacts required,’ ‘degree of concentration,’ ‘working conditions,’ ‘number directed,’ and ‘supervisory responsibility.’ “3 Actually, the degree is a letter ranging from A to F, but each letter for a particular factor represents a certain number.” . 145 N.L.R.B. 152 (1963). . 29 U.S.O. § 152(6) and (7) (1959). . 29 U.S.O. § 158(a) (1) and (5) (1959). . Accordingly the Trial Examiner recommended that the Employer: “1. Cease and desist from refusing to furnish International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, and its Local Union No. 300, with the job evaluation factors and with the wage rates, grades, and ranges, and other economic benefits of particular administrative employees, when requested to do so by said organization. “2. Take the following affirmative action necessary to effectuate the policies of the Act: “Upon request of the above-named labor organization, furnish it with respect to the particular administrative employees or jobs as to whom the request is made with the names or number of employees in each requested job classification or title, and with other relevant data pertaining to the classification of the job or jobs in question as ‘administrative,’ including such matters as the job description, the job evaluation factors, and the wage rate, grade, anct range, and other economic benefits pertaining to the job or jobs.” . 29 U.S.O. § 158(a) (5) (1959). . 29 U.S.O. § 158(d) (1959). . As authority, the Employer cited National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); Pine Industrial Relations Committee Inc., 118 N.L.R.B. 1055, aff’d" }, { "docid": "12197498", "title": "", "text": "accordance with this opinion. It is so ordered. . Sagamore Shirt Co., 153 N.L.R.B. #27 (1965). . Act of July 5, 1935, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq. (1964). Section 8 of the Act appears at 29 U.S. C. § 158 (1964). . 29 C.F.R. 133 (1966). . See Boire v. Greyhound Corp., 376 U.S. 473, 476-479, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); May Dep’t Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945) ; AFL v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). If the Board acts outside its jurisdiction, however, such action can be challenged immediately by suit in the District Court. Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). The scope of Leedom v. Kyne is a restricted one. Boire v. Greyhound Corp., supra. . See AFL v. NLRB, supra, note 4, 308 U.S. at 410, 60 S.Ct. 300; Bearings Before Senate Comm. on Ed. & Labor on S. 1000 et al., 76th Cong., 1st Sess., 584 — 87; H.R. Rep. No. 510, 80th Cong., 1st Sess., 56-57. . Cases supra note 4. Section 9(d) of the Act makes it clear that the reviewing court, on appeal from a finding of an unfair labor practice, will have before it, as part of the record, the proceedings in the representation hearing. . See, e.g., United Dairies, Inc., 144 N.L.R. B. 153, 154 (1963); National Van Lines, 123 N.L.R.B. 1272, 1273, n. 4 (1959); but of. Plaskolite, Inc., 134 N.L.R.B. 754, 755 n. 2 (1961); New Orleans Laundries, Inc., 114 N.L.R.B. 1077, 1086 (1955). . See, e.g., Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 158, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); Rockwell Mfg. Co. v. NLRB, 330 F.2d 795, 797-798 (7th Cir.), cert. denied, 379 U.S. 890, 85 S.Ct. 161, 13 L.Ed.2d 94 (1964); NLRB v. West. Ky. Coal Co., 152 F.2d 198, 200 (6th Cir. 1945), cert. denied, 328 U.S. 866, 66 S.Ct. 1372, 90 L.Ed. 1636 (1946). . See S.Rep. No. 187, 86th" }, { "docid": "23700277", "title": "", "text": "a contention, since repeated, that the Company had no legal obligation to furnish the data) several changes were made in the composition of the bargaining unit. It seems cl.ear to me that where the production of such data accomplishes such results, the Union has shown that the material was relevant to its discharge of its obligation to represent the employees.” 145 N.L.R.B. 152, 157 (1963). . See N.L.R.B. v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2 Cir. 1951). . 142 N.L.R.B. 304, enforced, Hollywood Brands v. N.L.R.B., 324 F.2d 956 (5 Cir. 1963), rehearing denied, 5 Cir., 326 F.2d 400, cert. denied, 377 U.S. 923, 84 S.Ct. 1221, 12 L.Ed.2d 215 (1964). . There may be exceptions to this general rule. See Local 24 of International Brotherhood of Teamsters, etc., v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), where the working conditions of non-unit employees were included within the scope of mandatory bargaining because of the potential effect the non-union employees working conditions might have on unionized jobs. . 306 F.2d 569 (5 Cir. 1962). . Supra note 14. . American Newspaper Pub. Ass’n v. N.L. R.B., 193 F.2d 782, 800 (7 Cir. 1951). . N.L.R.B. v. Pacific Gas & Electric Co., 118 F.2d 780, 788 (9 Cir. 1941). . N.L.R.B. v. S. W. Evans & Son, 181 F.2d 427, 431 (3 Cir. 1950). . See, e.g., Northwestern Bell Tel. Co. v. Nebraska State Ry. Comm., 297 U.S. 471, 476, 56 S.Ct. 536, 80 L.Ed. 810 (1936); American Newspaper Pub. Ass’n v. N.L. R.B., supra note 24, 193 F.2d at 799. . N.L.R.B. v. Yale & Towne Mfg. Co., 114 F.2d 376, 379 (2 Cir. 1940); Local 138, Int’l Union of Operating Engineers, 123 N.L.R.B. 1393, 1396 n. 8 (1959). . Stokely-Bordo Co., 130 N.L.R.B. 869, 872-73 (1961). See N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F.2d 941, 947-948 (1 Cir. 1961); N.L.R.B. v. H. E. Fletcher Co., 298 F.2d 594, 600 (1 Cir. 1962). . 1 Davis, Administrative Law § 8.04 at 525 (1958). . Compare Fed.Rule Civ.Proc. 15(b)." }, { "docid": "23700273", "title": "", "text": "“Very truly yours, “E.S.E.A. LOCAL 300 U.A.W. “Thomas Lazzio, “President.” The request for the identical information was repeated in a letter between the same parties dated September 10, 1962. . 29 U.S.C. § 158(a) (1) and (5) (1959). These portions of the Act provide respectively : “(a) 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 157 of this title; “(5) to refuse to bargain collectively with the representative of his employees, subject to the provisions of section 159(a) of this title.” . In Ms Intermediate Report, note 6 infra, the Trial Examiner accurately described the job evaluation factors thus: “ * * * The ‘job evaluation factors’ are a part of the total ‘job description’ sheet which the Company prepares for each job in a bargaining unit and also for a number of administrative jobs outside the unit. Each of those sheets contains on one side a narrative description of the duties and functions of the particular job. The reverse side is a printed form listing 11 ‘job factors,’ and blank spaces opposite each for filling in the appropriate ‘degree’ and the ‘basis of rating.’ The sum of 11 ‘degrees’ 3 gives the total rating of the job, which in turn determines the wage. The ‘basis of rating’ on each factor is a sentence or two explaining the degree assigned. The 11 factors are ‘scholastic requirements,’ ‘previously related experience,’ ‘qualifying period,’ ‘scope of duties,’ ‘initiative exercised,’ ‘frequence of verification,’ ‘contacts required,’ ‘degree of concentration,’ ‘working conditions,’ ‘number directed,’ and ‘supervisory responsibility.’ “3 Actually, the degree is a letter ranging from A to F, but each letter for a particular factor represents a certain number.” . 145 N.L.R.B. 152 (1963). . 29 U.S.O. § 152(6) and (7) (1959). . 29 U.S.O. § 158(a) (1) and (5) (1959). . Accordingly the Trial Examiner recommended that the Employer: “1. Cease and desist from refusing to furnish International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, and its Local Union No." }, { "docid": "14319966", "title": "", "text": "time study data for the tractor line jobs. The Union repeated its request in writing on April 5, stating that it needed the time studies requested to “arrive at an answer as to whether there was a legitimate complaint or not.” The Company, without explanation, refused to make these time studies available. Unfair labor practice charges were filed with the Board by the International Union against the Company. The Trial Examiner found violations of Section 8 (a)(5) and (1) of the Act in the Company’s refusal of the March 15 and March 26 requests but found no violation in the refusal of the broad request made on March 28 for “all data and time study information” for “all jobs” in the bargaining unit at' the Bettendorf works because such request was unduly burdensome and because the information so requested exceeded any need by the Union, existing or prospective. The Board, upon the undisputed facts presented, sustained the holding that the refusals to supply the data requested on March 15 and 26 were in violation of the Company’s statutory bargaining obligations but found, in addition, that the refusal of the March 28 request was also a violation of the provisions of the Act. Although the particular circumstances in each case must be considered in determining whether or not the statutory obligation to bargain in good faith has been met (N.L.R.B. v. Truitt Mfg. Co., 1956,.351 U.S. 149, 153, 76 S.Ct, 753, 100 L.Ed. 1027), there are numerous decisions to the effect that a refusal by an employer to supply pertinent and relevant wage data concerning wage rates of the employees is a violation of the obligation to bargain in good faith. N.L.R.B. v. F. W. Woolworth Co., 1956, 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235, reversing 9 Cir., 1956, 235 F.2d 319; Taylor Forge & Pipe Co. v. N.L.R.B., 1956, 7 Cir., 234 F.2d 227; certiorari denied, 1956, 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d 238; Boston Herald-Traveler Corp. v. N.L.R.B., 1955, 1 Cir., 223 F.2d 58; N.L.R.B. v. Item Company, 1955, 5 Cir., 220 F.2d 956; N.L.R.B." }, { "docid": "14319974", "title": "", "text": "Co., 9 Cir., 1956, 235 F.2d 319, 322. There was also some reference to complaints by employees giving rise to potential grievances and creating the need for the requested data. Ibid. The position taken by the company in the Woolworth case in refusing the data was in all material aspects identical to that of the petitioner in the instant case. The Court of Appeals for the Ninth Circuit after noting the language of the Supreme Court in N.L.R.B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 to the effect that cases involving requests for data must each turn on their peculiar circumstances, proceeded to reject the Board’s findings and conclusions as without any rational basis and ruled that the Union must in such cases show more clearly some proof of relevancy of the information requested to its role as bargaining representative. Although the Supreme Court, in summarily reversing without opinion the Court of Appeals in the Woolworth case,, gave little guide for the determination, of related cases, its rejection of the-Ninth Circuit’s decision clearly indicates that more weight must be given the Board’s findings on the question of the relevance of the information requested' to the Union’s statutory obligation to> police and administer the agreement. The Court of Appeals in the Woolworth case did recognize that the-Board was not enunciating a “per se”' right to information. Clearly, there is no such right of the Union to information. The Board certainly does not so-contend, although, as the dissenting opinion of Mr. Justice Frankfurter in N.L.R.B. v. Truitt Mfg. Co., supra, 351 U.S. at page 156, 76 S.Ct. at page 757 indicated, the Board has increasingly tend ed to approach the “good faith” and disclosure question in an overly mechanical fashion. The Board likens the circumstances involved in this present case to those in Taylor Forge & Pipe Co. v. N.L.R.B., supra. In that case the Union’s request was made during bargaining negotiations and was for data on certain “point ratings” which the Company used in determining each employee’s rate of pay. The information was refused." }, { "docid": "4807009", "title": "", "text": "of organized labor against this employer; such politicization would be antithetical to the basis for affording deference to what should be the neutral perspective of an administrative agency. Nevertheless, there is certainly a rational basis for petitioner’s view on this record, and I therefore conclude that there is evidence “sufficient to spell out a likelihood” that Renaissance engaged in surface bargaining by continuing to insist on the terms of its initial proposal while rejecting alternative proposals without meaningful consideration. See Hoffman, 247 F.3d at 365. 2. Failure to Provide Complete and Accurate Financial Information “[Pjatently improbable justifications for a bargaining position” are suggestive of bad-faith bargaining. Glomac Plastics, Inc. v. NLRB, 592 F.2d 94, 98 (2d Cir.1979). Good-faith bargaining thus requires that each party base its bargaining position upon “honest claims.” NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). According to the Supreme Court, an employer that bases a bargaining position on a claim of financial distress is generally required to provide “some sort of proof’ that it is truly unable to pay. Id. at 152-53, 76 S.Ct. 753. In Truitt, the Supreme Court attempted to narrow its holding, reiterating that every surface-bargaining case is fact-specific and stating that a union is not entitled to substantiating evidence every time economic inability is raised as an argument against increased wages. See id. at 153-54, 76 S.Ct. 753. But the Truitt case, at the very least, stands for the proposition that “a refusal to attempt to substantiate a claim of inability to pay increased wages may support a finding of a failure to bargain in good faith.” Id. at 153, 76 S.Ct. 753. Under the N.L.R.B.’s interpretation of Truitt, an employer that claims an inability to pay a requested wage increase must always substantiate this claim by providing financial information to the union. See Nielsen Lithographing Co., 305 N.L.R.B. 697, 700 (1991), aff'd sub nom. Graphic Commc’ns Int'l Union, Local 508 v. NLRB, 977 F.2d 1168 (7th Cir.1992). The N.L.R.B. distinguishes such employers from employers that simply do not want to pay higher wages" }, { "docid": "23700275", "title": "", "text": "300, with the job evaluation factors and with the wage rates, grades, and ranges, and other economic benefits of particular administrative employees, when requested to do so by said organization. “2. Take the following affirmative action necessary to effectuate the policies of the Act: “Upon request of the above-named labor organization, furnish it with respect to the particular administrative employees or jobs as to whom the request is made with the names or number of employees in each requested job classification or title, and with other relevant data pertaining to the classification of the job or jobs in question as ‘administrative,’ including such matters as the job description, the job evaluation factors, and the wage rate, grade, anct range, and other economic benefits pertaining to the job or jobs.” . 29 U.S.O. § 158(a) (5) (1959). . 29 U.S.O. § 158(d) (1959). . As authority, the Employer cited National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); Pine Industrial Relations Committee Inc., 118 N.L.R.B. 1055, aff’d sub nom., Int. Woodworkers of America v. N.L.R.B., 105 U.S.App.D.C. 37, 263 F.2d 483 (1959). . The Union, which appears in this case as amicus curiae, takes substantially the same position. . See Boston Herald-Trav. Corp. v. N.L. R.B., 223 F.2d 58 (1 Cir. 1955) where a thorough analysis of earlier cases is made. See also these later cases: Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746 (6 Cir. 1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964); J. I. Case Co. v. N.L.R.B., 253 F.2d 149 (7 Cir. 1958); Taylor Forge & Pipe Works v. N.L.R.B., 234 F.2d 227 (7 Cir. 1956). . Supra note 12. . Supra note 14. . Supra note 12. . In this connection the Trial Examiner stated: “ * * * With respect to such employees, however, the record shows that the Union had good cause to believe that certain misclassifications had occurred, and, indeed, as a result of the information eventually furnished by the Company (after issuance of the complaint, and coupled with" }, { "docid": "14319977", "title": "", "text": "905, 76 S.Ct. 177, 100 L.Ed. 795, and in Boston Herald-Traveler Corp. v. N.L.R.B., 1 Cir., 1955, 223 F.2d 58, 62, 63. We hold that the Board correctly found that each request by the Union was made in good faith for data directly related to the Union’s functions as bargaining representative. The Union was interested in obtaining the time study data on the tractor line jobs at the Rock Island plant to determine whether or not there was any basis for employee complaints as to the piece rate for those jobs and, therefore, whether or not the Union should file or support a grievance with respect to the rates for the jobs. Similarly, the Union had a real interest in any time study or other data the Company relied upon in maintaining the same rate of pay on the turret lathe-vertical job at the Bettendorf plant after changing the job from a one to two machine operation. The Company did not satisfy its obligation by oral presentation of the complicated wage data during the regular meeting with the Plant Grievance Committee. The much broader request of March 28 was likewise well founded. The time study data, job value information and labor grade data are all important considerations in the Company’s wage structure. Taylor Forge & Pipe Co. v. N.L.R.B., supra, 234 F.2d at page 229. In this respect there is no merit in the Company’s contention that the data requested was used for internal management purposes only. Also, it is not material whether the Company relied directly on this information in its negotiations with the Union. The Board’s order requires only the production of data used in classifying or evaluating jobs or fixing rates of employees. As in the Taylor Forge case only with the requested information available would the Union be able “ ‘to know whether to press or modify a particular wage demand, whether inequities exist which merit discussion or correction, and whether other elements are present in the wage structure which, though impossible to visualize beforehand, appear to merit discussion once the full picture is available.’ ”" }, { "docid": "15207020", "title": "", "text": "570 F.2d 4 (1st Cir. 1977). In our discussion of “the general obligation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties,” NLRB v. Acme Industrial, 385 U.S. 432, 435-36, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967), we observed: “The ‘general obligation’ described in Acme extends in varying degrees of intensity throughout the many aspects of management-union relations, with accommodation being made between the union’s urgent need for some types of information, such as wage data, and the employer’s greater relative interest in preserving the confidentiality of other information, such as profitability data.” Teleprompter Corp., supra, 570 F.2d at 8. Information pertaining immediately to the mandatory subjects of bargaining — wages, hours, and other terms and conditions of employment, see 29 U.S.C. § 158(d) — is presumptively relevant and must be disclosed unless it “plainly appears irrelevant.” NLRB v. Yawman and Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir. 1951). Other kinds of information which a union believes might be useful in bargaining “need not be disclosed in the course of contract negotiations unless the bargaining representative first makes a showing that it is specially relevant to the bargaining taking place.” Teleprompter Corp., supra, 570 F.2d at 9 (citing International Woodworkers v. NLRB, 105 U.S.App.D.C. 37, 263 F.2d 483 (1959)). In such cases, a union must do more than merely claim that the data would be helpful in performing its tasks. Id. But if an employer itself puts the information in contention — as by asserting an economic inability to pay an increase in wages where a union seeks profitability data — then the employer must divulge the information. Id. at 9 (citing NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152-53, 76 S.Ct. 753, 100 L.Ed. 1027 (1955)). Neither of the Labor Board decisions at issue here treated the cost data sought by the unions as directly related to a mandatory subject of bargaining and therefore presumptively relevant. For example, the AU wrote in the CL&P case: “I agree with the [employer’s] contention that not all" }, { "docid": "4023101", "title": "", "text": "Trial Examiner. In addition the Board ordered the posting of appropriate notices. Like the controlling facts, the basic principles of law to be applied are not here in dispute. An employer has a duty to provide, upon request, information relevant to bargainable issues. N. L. R. B. v. Truitt Mfg. Co., 351 U.S. 149, 153, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); N. L. R. B. v. Acme Industrial Co., 385 U.S. 432, 435-436, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). Where the requested information concerns wages and related information for employees in the bargaining unit, the information is presumptively relevant to bargainable issues'. Curtiss-Wright Corp. v. N. L. R. B., 347 F.2d 61, 69 (3rd Cir.1965); Timkin Roller Bearing Co. v. N. L. R. B. 325 F.2d 746, 750, 2 A.L.R.3d 868 (6th Cir.1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964). Where the request is for information concerning employees outside the bargaining unit, the Union must show that the requested information is relevant to bargainable issues. N. L. R. B. v. Goodyear Aerospace Corp., 388 F.2d 673, 674 (6th Cir.1968); Curtiss-Wright Corp v. N. L. R. B., 347 F.2d 61, 69 (3rd Cir.1965). Respondent contends that the information about employees and work done outside the geographical scope of the bargaining unit could not be relevant to bargainable issues. However, the Union’s letter of April 20th stated that the Union needed information to determine whether to process grievances, file unfair labor practice charges or seek amendments to the collective bargaining agreement. If unit work was in fact transferred from the Clark Street offices to the Bagley Building, the Union may have grounds to file grievances or unfair labor practice charges. The preservation or diversion of unit work is a subject of mandatory bargaining under the Act. Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 209, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). In this case it would seem that the Union had reasonable grounds to fear that unit work was being transferred from the Clark Street offices to the Bagley Building." }, { "docid": "14319973", "title": "", "text": "W. Woolworth Co., 9 Cir., 1956, 235 F.2d 319, and also in the decision of this court in Taylor Forge & Pipe Co. v. N.L.R.B., 7 Cir., 1956, 234 F.2d 227. In the Woolworth case, shortly after negotiation and execution of a collective bargaining contract, the Union requested certain wage information including the number of hours worked per week by each employee and also each employee’s total pay and rate of pay. This request was ignored by the Company. The Board found this to be a violation of Section 8(a) (1) and (5) of the Act but the Court of Appeals denied the petition for enforcement. The Supreme Court without opinion summarily reversed that court’s decision. N.L.R.B. v. Woolworth Co., 1956, 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235. In many respects there is a close parallel between the Woolworth case and the instant case. The only ground for the request expressly asserted in Woolworth was that the information was needed for “intelligent and equitable administration of the Agreement.” N.L.R.B. v. F. W. Woolworth Co., 9 Cir., 1956, 235 F.2d 319, 322. There was also some reference to complaints by employees giving rise to potential grievances and creating the need for the requested data. Ibid. The position taken by the company in the Woolworth case in refusing the data was in all material aspects identical to that of the petitioner in the instant case. The Court of Appeals for the Ninth Circuit after noting the language of the Supreme Court in N.L.R.B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 to the effect that cases involving requests for data must each turn on their peculiar circumstances, proceeded to reject the Board’s findings and conclusions as without any rational basis and ruled that the Union must in such cases show more clearly some proof of relevancy of the information requested to its role as bargaining representative. Although the Supreme Court, in summarily reversing without opinion the Court of Appeals in the Woolworth case,, gave little guide for the determination, of related cases, its rejection" }, { "docid": "23700276", "title": "", "text": "sub nom., Int. Woodworkers of America v. N.L.R.B., 105 U.S.App.D.C. 37, 263 F.2d 483 (1959). . The Union, which appears in this case as amicus curiae, takes substantially the same position. . See Boston Herald-Trav. Corp. v. N.L. R.B., 223 F.2d 58 (1 Cir. 1955) where a thorough analysis of earlier cases is made. See also these later cases: Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746 (6 Cir. 1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964); J. I. Case Co. v. N.L.R.B., 253 F.2d 149 (7 Cir. 1958); Taylor Forge & Pipe Works v. N.L.R.B., 234 F.2d 227 (7 Cir. 1956). . Supra note 12. . Supra note 14. . Supra note 12. . In this connection the Trial Examiner stated: “ * * * With respect to such employees, however, the record shows that the Union had good cause to believe that certain misclassifications had occurred, and, indeed, as a result of the information eventually furnished by the Company (after issuance of the complaint, and coupled with a contention, since repeated, that the Company had no legal obligation to furnish the data) several changes were made in the composition of the bargaining unit. It seems cl.ear to me that where the production of such data accomplishes such results, the Union has shown that the material was relevant to its discharge of its obligation to represent the employees.” 145 N.L.R.B. 152, 157 (1963). . See N.L.R.B. v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2 Cir. 1951). . 142 N.L.R.B. 304, enforced, Hollywood Brands v. N.L.R.B., 324 F.2d 956 (5 Cir. 1963), rehearing denied, 5 Cir., 326 F.2d 400, cert. denied, 377 U.S. 923, 84 S.Ct. 1221, 12 L.Ed.2d 215 (1964). . There may be exceptions to this general rule. See Local 24 of International Brotherhood of Teamsters, etc., v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), where the working conditions of non-unit employees were included within the scope of mandatory bargaining because of the potential effect the non-union employees working conditions might have on unionized jobs." }, { "docid": "11662486", "title": "", "text": "the employer-employee relationship, and information concerning existing and past wage rates and patterns is essential to the union to enable it to bargain intelligently. This is not necessarily so with respect to what the employer’s records show about how much, or at what cost, or in what time he produces his goods, and how or at what cost or in what volume he sells those products. [Emphasis supplied.]” General Aniline and Film Corp., 124 N.L.R.B. 1217, 1219 (1959). These are the very contentions presented by The Kroger Co. from this record. The Hearing Examiner and the Board found that the O.R. program had “a significant and substantial relationship” to the working conditions of employees represented by the union. They cited Fafnir Bearing Co. v. NLRB, 362 F.2d 716 (2d Cir. 1966), and NLRB v. Otis Elevator Co., 208 F.2d 176 (2d Cir. 1953). These two cases relate to situations involving negotiations of piecework rates where time study information is the essence of the dispute. In the instant case the employees in question are on hourly rates. But at least arguably the union’s concern with speed-up or safety gives legitimacy to its request for information. And we find no merit to Kroger’s argument that such interest had been waived by contract terms. Although this court has no doubt that there is indeed a significant relationship between the O.R. program and employee working conditions, we do not think this automatically ends the matter. The Supreme Court recognized the need to look at “the circumstances of the particular case” in determining whether or not the statutory obligation to bargain in good faith has been met. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153-154, 76 S.Ct. 753, 756, 100 L.Ed. 1027 (1956). In what appears to this court to be a closely related set of circumstances, the Board itself declined a finding of refusal to bargain: “It is undisputed that during the course of bargaining negotiations the Respondent refused the Union’s demand for an unrestricted right to have and to use exact copies of Respondent’s job evaluation and job description records for study" }, { "docid": "21379419", "title": "", "text": "distinguishable; they involved either illegal agreements or employer knowledge of the discriminatory practices. Those portions of the Board’s order which relate to Local 80 are affirmed and will be enforced. In so far as the order relates to the liability of The Lummus Company, it is reversed. So ordered. . 49 Stat. 452 (1935), as amended, 29 U.S.C. § 158(a) (3) and (1). . Added by 61 Stat. 141 (1947), 29 U.S.C. § 158(b) (2) and (1) (A). . The examiner said March 14th or 15th; the Board said March 15th. . The trial examiner found that James Eavlin then said, “Look, I have some rights,” to which Kennedy replied, “Down here you don’t have any rights.” . 49 Stat. 453 (1935), 29 U.S.O. § 160. . Radio Officers Union of Commercial Telegraphers Union, A.F.L. v. N.L.R.B., 347 U.S. 17, 40, 74 S.Ct. 323, 335, 98 L. Ed. 455 (1954). . Local 357, International Bro. of Teamsters etc. v. N.L.R.B., 365 U.S. 667, 076, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961). . Supra note 6, 347 U.S. at 40, 74 S.Ct. at 335. See also N.L.R.B. v. Local 542, International U. of Operating Engineers, 255 F.2d 703, 705 (3d Cir. 1958). . Supra note 7. . See N.L.R.B. v. Local 294, International Bro. of Teamsters, 317 F.2d 746 (2d Cir. 1963); International Longshoremen's & Warehousemen’s U., Local No. 10, 121 N.L.R.B. 938 (1958); Bricklayers, Masons & Hod Carriers, Building & Common Laborers U., Local 7, 135 N.L.R.B. 865 (1962). . N.L.R.B. v. Local 490, International Hod Carriers, 300 F.2d 328 (8th Cir. 1962); N.L.R.B. v. Local 450, International U. of Operating Engineers, 281 F. 2d 313 (5th Cir. 1960), cert, denied, 360 U.S. 909, 81 S.Ct. 1084, 6 L.Ed.2d 235 (1961). . Brunswick Corp., 135 N.L.K.B. 574 (1902), enforced sub nom. N.L.R.B. v. Local 65, United Bro. of Carpenters and Joiners of America, 318 F.2d 419 (3d Cir. 1963). . Local 138, International U. of Operating Engineers, A.F.L.-C.I.O. v. N.L.R.B., 321 F.2d 130 (2d Cir. 1963); N.L.R.B. v. International Bro. of Elec. Workers, Local U. 340, 301 F.2d 824 (9th" }, { "docid": "17332811", "title": "", "text": "bargain in good faith as to “wages, hours and other terms and conditions of employment.” National Labor Relations Board v. Wooster-Division of Borg-Warner Corp., 1958, 356 U.S. 342, 349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823. . We have hitherto rejected any such strained interpretation, in different factual context, to be sure, and with reference to a different section of the Act, viz.: 29 U.S.C.A. § 158(b) (4) (C). Bonnaz, Hand Embroiderers, etc. v. National Labor Relations Board, 1956, 97 U.S.App.D.C. 234, 230 F.2d 47. And see opinion of Board member Jenkins in the Grand Union Company Case, 123 N.L.R.B. 1673 (1959). . The Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, in § 3(i) defines “labor organization” to mean “a labor organization engaged in an industry affecting commerce and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in ■which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment * * 29 U.S.C.A. § 402 (i). . 29 U.S.C.A. § 157. . He was bound so to act as the exclusive bargaining representative of all the employees. 29 U.S.C.A. § 159(a). Of course, he signed as an individual, but it was the agreement of the employees. Cf. United States v. Ryan, 1956, 350 U.S. 299, 302, 76 S.Ct. 400, 100 L.Ed. 335. . Cf. National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Un ion, 1960, 362 U.S. 274, 282, 80 S.Ct. 706, 4 L.Ed.2d 710. . Congress knew of the possibility of “free riders” in such situations. Radio Officers v. National Labor Relations Board, 1954, 347 U.S. 17, 41, 74 S.Ct. 323, 98 L.Ed. 455; compare the American Seating Company Case, 98 N.L.R.B. 800 (1952). . Cf. N. L. R. B. v. American Dredging Company, 3 Cir., 1960, 276 F.2d 286, petition for certiorari filed. . Indeed, certifications of individuals are rare. United States v. Ryan, supra note 6, 350 U.S. at page" }, { "docid": "15207021", "title": "", "text": "bargaining “need not be disclosed in the course of contract negotiations unless the bargaining representative first makes a showing that it is specially relevant to the bargaining taking place.” Teleprompter Corp., supra, 570 F.2d at 9 (citing International Woodworkers v. NLRB, 105 U.S.App.D.C. 37, 263 F.2d 483 (1959)). In such cases, a union must do more than merely claim that the data would be helpful in performing its tasks. Id. But if an employer itself puts the information in contention — as by asserting an economic inability to pay an increase in wages where a union seeks profitability data — then the employer must divulge the information. Id. at 9 (citing NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152-53, 76 S.Ct. 753, 100 L.Ed. 1027 (1955)). Neither of the Labor Board decisions at issue here treated the cost data sought by the unions as directly related to a mandatory subject of bargaining and therefore presumptively relevant. For example, the AU wrote in the CL&P case: “I agree with the [employer’s] contention that not all information is presumptively relevant to the bargaining process, and that in areas such as contracting and subcontracting an employer is not obligated to furnish information unless such precise relevance has been established.” The ALJ in the WME-CO decision applied a similar analysis. Rulings of the Board and case law support this conclusion. Following the decision of the Supreme Court in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1965), that contracting out of unit work that results in the extinction of the bargaining unit is a mandatory subject of bargaining, the Labor Board quickly sought to cut off precipitous extension of that ruling to other forms of subcontracting. In Westinghouse Electric Corp., 150 N.L.R.B. 1574 (1965), the Board held that an employer was permitted unilaterally to implement contracting out of work capable of being performed by unit employees when the subcontracting was part of the employer’s usual method of conducting its operations and did not have a significant impact on unit employees’ job interests. Id. at 1576. Subsequent" }, { "docid": "14319967", "title": "", "text": "the Company’s statutory bargaining obligations but found, in addition, that the refusal of the March 28 request was also a violation of the provisions of the Act. Although the particular circumstances in each case must be considered in determining whether or not the statutory obligation to bargain in good faith has been met (N.L.R.B. v. Truitt Mfg. Co., 1956,.351 U.S. 149, 153, 76 S.Ct, 753, 100 L.Ed. 1027), there are numerous decisions to the effect that a refusal by an employer to supply pertinent and relevant wage data concerning wage rates of the employees is a violation of the obligation to bargain in good faith. N.L.R.B. v. F. W. Woolworth Co., 1956, 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235, reversing 9 Cir., 1956, 235 F.2d 319; Taylor Forge & Pipe Co. v. N.L.R.B., 1956, 7 Cir., 234 F.2d 227; certiorari denied, 1956, 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d 238; Boston Herald-Traveler Corp. v. N.L.R.B., 1955, 1 Cir., 223 F.2d 58; N.L.R.B. v. Item Company, 1955, 5 Cir., 220 F.2d 956; N.L.R.B. v. Whitin Machine Works, 1954, 4 Cir., 217 F.2d 593; N.L.R.B. v. Otis Elevator Co., 1953, 2 Cir., 208 F.2d 176. The Company contends that, in light •of the circumstances in this case, it fulfilled its statutory duty to bargain. It urges that it had no obligation to furnish the desired information because the Union’s requests for data were not made in good faith for purposes of collective bargaining; the requested data pertained neither to a pending grievance nor to a request for negotiation under the contract; the production of the data would have been unwarrantedly burdensome since the Company did offer to supply some of the information orally; and, finally, the requested data had not been relied upon by the Company during negotiations with the Union but was used for internal management purposes only. If, as the Company contends, the Union’s requests, in each instance, were not made in good faith for the purpose of collective bargaining, the refusal to supply the data would not have been a violation of the Act. Boston Herald-Traveler" } ]

[ { "docid": "4290255", "title": "", "text": "be surveyed. * * * ” Section 14 (30 USCA § 223) provides in part that: “Upon establishing to the satis.faction of the Secretary of the Interior that valuable deposits of oil or gas have been discovered within the limits of the land embraced in any permit, the permittee shall be entitled to a lease for one-fourth of the land embraced in the prospecting permit. • • *» There is no provision in the act purporting to repeal or modify the act of 1910, and in our view such a modification may not be implied. The provision in the first section (30 USCA § 181) that the lands containing certain named mineral deposits “shall be subject to disposition in the form and manner provided by this Act” is ' general, and no more mandatory than was the provision in the act of 1872 (17 Stat. 91, Rev. St. §§ 2319, 2329 [30 USCA §§ 22, 35]), declaring all public lands containing petroleum or other mineral oils to be “free and open to occupation, exploration and purchase by citizens of the United States * * * under regulations prescribed by law”; and yet the President withdrew without direct congressional authority such public lands, and his action was sustained in the Midwest Case, 236 U. S. 459; 35 S. Ct. 309, 59 L. Ed. 673. But it is insisted that the. act of 1910 only authorizes the temporary withdrawal by the President of public lands “from settlement, location, sale, or entry,” and that the application for permit and the lease which may follow discovery of oil under the act of 1920' axe not embraced within those terms. It is apparent, we think, that the act of 1910 was intended to be of wide scope and recognized the authority of the President temporarily to prevent the alienation of public lands or any interest therein adverse to the United States. In ‘Mason v. United States, 260 U. S. 545, 43 S. Ct. 200, 201, 67 L. Ed. 396, by Executive order dated December 15, 1908, lands had been “withdrawn from settlement and entry, or" } ]

[ { "docid": "799372", "title": "", "text": "that “goals and objectives be established by law as guidelines for public land use planning, and that management be on the basis of multiple use and sustained yield unless otherwise specified by law,” 43 U.S.C. § 1701(a)(7) ; and that “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, ■ water resource, and archeological values; [in a manner] that, where appropriate, will preserve and protect certain public lands in their natural condition; [in a manner] that will provide food and habitat for fish and wildlife and domestic animals; and [in a manner] that will provide for outdoor recreation and human occupancy and use,” 43 U.S.C. § 1701(a)(8). As relevant here, FLPMA eliminates the implied executive branch withdrawal authority recognized in Midwest Oil, and substitutes express, limited authority. See Pub. L. 94-579, § 704, Oct. 21, 1976, 90 Stat. 2743, 2792. It reserves to Congress the power to take certain land management actions, such as making or revoking permanent withdrawals of tracts of 5,000 acres or more (“large-tract” withdrawals) from mineral extraction. 43 U.S.C. § 17J4(c), (j). And it delegates to the Secretary of the Interior the power to make withdrawals of tracts smaller than 5,000 acres (“small-tract” withdrawals), whether temporary or permanent, 43 U.S.C. § 1714(d), and to make temporary withdrawals of large-tract parcels of 5,000 acres or more, 43 U.S.C. § 1714(c). For all withdrawals, whether small- or large-tract, FLPMA requires that the Secretary publish notice of the proposed withdrawal in the Federal Register; afford an opportunity for public hearing and comment; and obtain consent to the withdrawal from any other department or agency involved in the administration of the lands proposed for withdrawal. 43 U.S.C. § 1714(b), (h), (i). The statute also bars the Secretary from further delegating his or her withdrawal authority to any individual outside the Department of the Interior, or to any individual within the Department who was not appointed by the President and confirmed by the Senate. 43 U.S.C. § 1714(a). FLPMA circumscribes the Secretary’s temporary large-tract withdrawal authority in three" }, { "docid": "16243782", "title": "", "text": "and Receiver of Inyo County indicates that there had been a valid withdrawal of the land prior to that date by the Department of Interior, although he admits that the letter itself was neither a withdrawal nor an executive order of the Secretary of the Interior. Saulque argues, therefore, that since the land had been withdrawn, it was not covered by the Taylor Grazing Act and was subject to allotment under the General Allotment Act of 1887. Congress mandated a specific procedure for the withdrawal of land from the public domain (Act of June 25, 1910; 36 Stat. 847; 43 U.S.C. §§ 141-143, 16 U.S.C. § 471; 43 C.F.R. 2300.0, et seq.). Section 141 — Withdrawal and reservation of lands for water-power sites or other purposes states: The President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States, including Alaska, and reserve the same for water-power sites, irrigation, classification, of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress. June 25, 1910, c. 421, Section 1, 36 Stat. 847. The authority thus given to the president in 1910 was not changed until 1943 when Executive Order 9337 was issued delegating the power to withdraw land to the Secretary of Interior. This Order was superseded by Executive Order 10355 of 1952 to the same effect, in pertinent part, as follows: EXECUTIVE ORDER No. 10355 May 26, 1952, 17 F.R. 4831 DELEGATION OF AUTHORITY Section 1. (a) Subject to the provision of subsections (b), (c), and (d) of this section, I hereby delegate to the Secretary of the Interior the authority vested in the President by section 1 of the act of June 25, 1910, ch. 421, 36 Stat. 847 (43 U.S.C. 141) [this section], and the authority otherwise vested in him to withdraw or reserve lands of the public domain and other lands owned or controlled by the United States in the continental" }, { "docid": "5361100", "title": "", "text": "OPINION Before DUNIWAY, TRASK and SNEED, Circuit Judges. DUNIWAY, Circuit Judge: Plaintiffs-appellants are Native Alaskans claiming to be eligible for allotments of public lands under the Alaska Native Allotment Act (May 17, 1906, 34 Stat. 197, as amended Aug. 2, 1956, Ch. 891, 70 Stat. 954; 43 U.S.C. §§ 270-1— 270 — 3 (1970), repealed but with a saving clause for applications pending on December 18, 1971, by P.L. 92-203, Dec. 18, 1971, 85 Stat. 710, 43 U.S.C. § 1617). They claim to represent a class of 8,500 Native Alaskans as defined in the Act, that is, Indians, Aleuts, or Eskimos of full or mixed blood, residing in and native of Alaska who are heads of families or twenty-one years of age, and who have applied for allotments under the Act. Defendants are the Secretary of the Interior and the United States. The complaint alleges that the procedures of the Secretary in deciding whether to grant allotments deny the applicants due process, and demands an injunction requiring the Secretary to adopt and use procedures that will afford the applicants due process. On motion for summary judgment, the court entered a judgment dismissing the action on the ground that the granting or denial of allotments is so far committed to the Secretary’s discretion as to put the matter beyond judicial review. Pence v. Morton, D.Alaska, 1975, 391 F.Supp. 1021. Plaintiffs appeal and we reverse and remand for further proceedings. The statute and the procedures adopted by the Secretary. 1. The Act authorized the Secretary “in his discretion and under such rules as he may prescribe” (§ 270-1) to allot up to 160 acres of vacant, unappropriated, and unreserved land in Alaska to any qualified Alaska Native. To qualify, the Native applicant must make “proof satisfactory to the Secretary ... of substantially continuous use and occupancy of the land for a period of five years.” (§ 270-3) The Secretary’s regulations construe the Act to allow for customary and seasonal patterns of use and occupancy, but require that there must be actual possession and use, potentially exclusive of others, and not merely intermittent" }, { "docid": "19333206", "title": "", "text": "Property Clause, Art. IV, §3, cl. 2. Since Utah Div. of State Lands concerned congressional enactments, it discloses little about the circumstances under which action by the Executive will defeat a State’s equal footing claim to submerged lands. As authority for inclusion of submerged lands within the Reserve, the Master focused on the Act of June 25, 1910, ch. 421, 36 Stat. 847, also known as the Pickett Act. The Act stated: “[T]he President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.” § 1, 36 Stat. 847 (repealed by the Federal Land Policy and Management Act of 1976, Pub. L. 94-579, § 704(a), 90 Stat. 2792). The Pickett Act nowhere specifically mentions submerged lands, and Alaska therefore challenges the Master’s conclusion that the Pickett Act gave the President the express authority to dispose of them. Its argument rests mainly on the proposition that the Pickett Act’s reference to “withdrawal]” of “public lands” cannot include submerged lands, because such lands are not subject to sale, settlement, or entry under the general land laws and therefore need not be “withdrawn.” Cf. Utah Div. of State Lands, 482 U. S., at 208 (1888 Act stated that lands designated for reservoir sites were “‘reserved from sale as the property of the United States, and shall not be subject ... to entry, settlement or occupation’ rejecting claim that Act authorized inclusion of submerged lands in part because such lands were already exempt from sale, entry, or occupation); Mann v. Tacoma Land Co., 153 U. S. 273, 284 (1894) (“[T]he general legislation of Congress in respect to public lands does not extend to tide lands”); Shively, 152 U. S., at 48 (“Congress has never undertaken by general laws to dispose of” land under" }, { "docid": "4947356", "title": "", "text": "314. Congress has since eliminated any implied Executive withdrawal power. Fed. Land Policy and Management Act of 1976, Pub. L. No. 94-579 § 704(a), 90 Stat. 2743. Midwest Oil concerned a controversy which arose before passage of the Pickett Act in 1910. Act of June 25, 1910, 36 Stat. 847 (codified at 43 U.S.C. §§ 141 to 143), repealed Fed. Land Policy and Management Act of 1976, Pub. L. No. 94-579 § 704(a), 90 Stat. 2743. The Pickett Act expressly authorized the President to “temporarily withdraw from settlement, location, sale, or entry any of the public lands . and reserve the same for . public purposes to be specified in the orders of withdrawals.” 43 U.S.C. § 141 (emphasis added). Lands withdrawn under the Pickett Act remained open to “exploration, discovery, occupation, and purchase under the mining laws.” Id. § 142. After passage of the Pickett Act, the question arose whether the President could withdraw lands so that they would not be subject to the mining laws. Then Attorney General Robert Jackson argued that the President could withdraw lands which were not subject to mining claims. 40 Op. Att’y Gen. 73 (1941). Jackson reasoned that the Pickett Act legislated only as to temporary withdrawals, and did not touch permanent executive order withdrawals. It is desirable to point out preliminarily that there is a recognized difference between the two kinds of withdrawals. It is true the Supreme Court stated in the Midwest case . . that there was no distinction in principle between a permanent reservation and a temporary withdrawal. But it seems clear the Court was referring to the question of power, not to types of withdrawal. The Court referred to differing factual situations in which one type is used and not the other. Thus it gave instances of withdrawals in aid of legislation (pp. 476-80 [35 S.Ct. 309]), and of withdrawals for reservations for public uses (pp. 470-1 [35 S.Ct. 309]), the latter including withdrawals for the establishment of bird refuges, enlargement of Indian or military reservations, the setting aside of land for water, timber, fuel, hay, signal stations," }, { "docid": "799368", "title": "", "text": "(authorizing the Secretary to make, revoke, or modify such withdrawals subject to certain conditions). After an extended study period, the Secretary issued a Record of Decision (“ROD”) in January 2012 announcing, the withdrawal of 1,006,546 acres. Several entities and one private individual opposed to the withdrawal challenged the Secretary’s decision in four separate actions filed in the District of Arizona. Parties interested in supporting the withdrawal moved to intervene, including four environmental groups and the Havasupai Tribe. The district court, in two well-crafted opinions, rejected the various challenges to the withdrawal. I. Background We begin with a brief history of-the political and legislative backdrop against which FLPMA was enacted in 1976. .The Property Clause of the U.S. Constitution vests in Congress the “power to , dispose of and make all needful rules and regulations respecting ... property belonging to the United States,” including federally owned public lands. U.S. Const,, Art. IV, § 3,, cl. 2. Congress has long used its authority under the Property Clause to permit the purchase of mining rights and exploration on federal lands, most notably in the General Mining Act of 1872, 30 U.S.C. §§ 22-54. Under .that Act, “all valuable mineral deposits in lands belonging to the United States, both surveyed and un-surveyed, shall be free and open to exploration and purchase.” 30 U.S.C. § 22. From early on, the executive branch has asserted and exercised the authority to withdraw federally owned lands from claims for mineral extraction. See United States v. Midwest Oil Co., 236 U.S. 459, 469-72, 35 S.Ct. 309, 59 L.Ed. 673 (1915). As Midwest Oil recognized, although Congress had delegated no “express statutory authority”- to withdraw previously available land from mineral exploitation, the executive branch had made a “multitude” of temporary such withdrawals, and Congress had “uniformly and repeatedly acquiesced in the practice.\" Id. at 469-71, 35 S.Ct. 309. That -acquiescence, Midwest Oil held, constituted an “implied grant of power” from Congress to. the executive permitting withdrawal of public lands from mineral extraction claims. Id. at 475, 35 S.Ct. 309. For decades after Midwest Oil, Congress did little to restrain the" }, { "docid": "4947355", "title": "", "text": "purpose or for naval uses, it does not follow that he can withdraw land in aid of legislation. When analyzed, this proposition, in effect seeks to make a distinction between a reservation and a withdrawal,— between a reservation for a purpose not provided for by existing legislation, and a withdrawal made in aid of future legislation. It would mean that a permanent reservation for a purpose designated by the President, but not provided for by statute, would be valid, while a merely temporary withdrawal to enable Congress to legislate in the public interest would be invalid. It is only necessary to point out that, as the greater includes the less, the power to make permanent reservations includes power to make temporary withdrawals. For there is no distinction in principle between the two. The character of the power exerted is the same in both cases. In both, the order is made to serve the public interest, and in both the effect on the intending settler or miner is the same. Id. at 475-76, 35 S.Ct. at 314. Congress has since eliminated any implied Executive withdrawal power. Fed. Land Policy and Management Act of 1976, Pub. L. No. 94-579 § 704(a), 90 Stat. 2743. Midwest Oil concerned a controversy which arose before passage of the Pickett Act in 1910. Act of June 25, 1910, 36 Stat. 847 (codified at 43 U.S.C. §§ 141 to 143), repealed Fed. Land Policy and Management Act of 1976, Pub. L. No. 94-579 § 704(a), 90 Stat. 2743. The Pickett Act expressly authorized the President to “temporarily withdraw from settlement, location, sale, or entry any of the public lands . and reserve the same for . public purposes to be specified in the orders of withdrawals.” 43 U.S.C. § 141 (emphasis added). Lands withdrawn under the Pickett Act remained open to “exploration, discovery, occupation, and purchase under the mining laws.” Id. § 142. After passage of the Pickett Act, the question arose whether the President could withdraw lands so that they would not be subject to the mining laws. Then Attorney General Robert Jackson argued that the" }, { "docid": "19333205", "title": "", "text": "along the Arctic coast of naval petroleum reserve numbered 4 [the National Petroleum Reserve].” §3(d) (emphasis added). Moreover, in contrast to Utah Div. of State Lands, defeating state title to submerged lands was necessary to achieve the United States’ objec tive — securing a supply of oil and gas that would necessarily exist beneath uplands and submerged lands. The transfer of submerged lands at statehood — and the loss of ownership rights to the oil deposits beneath those lands — would have thwarted that purpose. C Alaska argues that even if the 1923 Executive Order purported to include submerged lands within the Reserve for an appropriate public purpose and even if § 11(b) reflects a clear intent to defeat state title to all lands within the Reserve, title still passed to Alaska because the President lacked the authority to include submerged lands within the Reserve. Alaska Exceptions Brief 58-60. The argument is based in part on Utah Div. of State Lands, where we referred to the authority of Congress to dispose of property under the Property Clause, Art. IV, §3, cl. 2. Since Utah Div. of State Lands concerned congressional enactments, it discloses little about the circumstances under which action by the Executive will defeat a State’s equal footing claim to submerged lands. As authority for inclusion of submerged lands within the Reserve, the Master focused on the Act of June 25, 1910, ch. 421, 36 Stat. 847, also known as the Pickett Act. The Act stated: “[T]he President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.” § 1, 36 Stat. 847 (repealed by the Federal Land Policy and Management Act of 1976, Pub. L. 94-579, § 704(a), 90 Stat. 2792). The Pickett Act nowhere specifically mentions" }, { "docid": "21607653", "title": "", "text": "forth in the withdrawal order. See Pickett Act of 1910, ch. 421, 36 Stat. 847 (codified as amended at 43 U.S.C. §§ 141-142 (1970)), repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, 90 Stat. 2792; see also Midwest Oil Co., 236 U.S. at 482-83, 35 S.Ct. at 316-17 (validating executive withdrawals and discussing purpose and effect of Pickett Act). The Pickett Act withdrawals were only partial, however. When originally enacted, the Act provided that lands so withdrawn would remain open for development and purchase of “minerals other than coal, oil, gas and phosphates.” Ch. 421, 36 Stat. 847. In 1912, Congress amended the Pickett Act and replaced this list of excluded minerals with a provision allowing exploration and purchase of me-talliferous minerals on withdrawn lands. See Act of August 24, 1912, ch. 369, 37 Stat. 497. Under the Pickett Act, the Department of the Interior continued with its policy of withdrawing vast quantities of land it believed valuable for petroleum (including gas), phosphate, potash, waterpower, coal, and other nonmetalliferous minerals. See Letters from the Secretary of the Interior to Congress (Dec. 13, 1912 and December 16, 1913) (Report on Land Withdrawals from Settlement, Location, Sale, or Entry under Provisions of the Act of Congress Approved June 25, 1910, 36 Stat. 847). In addition to the Pickett Act land withdrawals, the United States Geological Survey (USGS) embarked on a large-scale program of classification of the public lands according to their mineral, hydrologic, and agricultural characteristics. See generally Bulletin 537. Under the USGS system then in use, mineral lands could be classified as coal lands, oil and gas lands, potash lands, or phosphate lands, among other minerals. See id. Concerning oil and gas, the Survey noted: “The immediate purpose of the classification of oil and gas land is to withhold from entry all lands containing valuable deposits of fluid hydrocarbons pending the enactment of adequate legislation providing for their disposition. The ultimate purpose of the classification is to determine the position and extent of the areas whose value for their deposits of oil or gas, whether proved" }, { "docid": "799369", "title": "", "text": "federal lands, most notably in the General Mining Act of 1872, 30 U.S.C. §§ 22-54. Under .that Act, “all valuable mineral deposits in lands belonging to the United States, both surveyed and un-surveyed, shall be free and open to exploration and purchase.” 30 U.S.C. § 22. From early on, the executive branch has asserted and exercised the authority to withdraw federally owned lands from claims for mineral extraction. See United States v. Midwest Oil Co., 236 U.S. 459, 469-72, 35 S.Ct. 309, 59 L.Ed. 673 (1915). As Midwest Oil recognized, although Congress had delegated no “express statutory authority”- to withdraw previously available land from mineral exploitation, the executive branch had made a “multitude” of temporary such withdrawals, and Congress had “uniformly and repeatedly acquiesced in the practice.\" Id. at 469-71, 35 S.Ct. 309. That -acquiescence, Midwest Oil held, constituted an “implied grant of power” from Congress to. the executive permitting withdrawal of public lands from mineral extraction claims. Id. at 475, 35 S.Ct. 309. For decades after Midwest Oil, Congress did little to restrain the .executive’s withdrawal authority, and the executive branch made liberal use of it. After World War II, however, demand for the commercial use of public land increased considerably. To address that increased demand) Congress in 1964 established the Public Land Law Review Commission (“PLLRC”), composed of several members of Congress and presidential appointees, to conduct a comprehensive review of federal land law and policy and propose suggestions for more efficient administration' of public lands. After several years of study the PLLRC issued a report-making 137 specific recommendations to Congress concerning the use and governance of public lands. PLLRC, One Third of the Nation’s Land ix-x, 9 (1970) (hereinafter “PLLRC Report”). The PLLRC Report observed that the roles of Congress and the ' executive branch with respect to public land use had “never been carefully defined,” and recommended that Congress pass new legislation specifying the precise authorities delegated to the executive for land management, including withdrawals. Id. at 43, 44, 54-55. The Report also recommended that “large scale limited or single use withdrawals of a permanent or" }, { "docid": "21607651", "title": "", "text": "of the enumerated resources “on account of which the lands were withdrawn or classified or reported as valuable.” Id. § 121. Plaintiffs claim that the term “gas” in the 1914 Act and in the patents refers to combustible hydrocarbon gas only. To gain a proper understanding of the statute at issue, we must put it into its historical context. As is true for much of the West, plaintiffs’ lands originally comprised part of a vast public domain. In the second half of the nineteenth century, Congress enacted homestead laws to encourage settlement and agricultural development of these immense stretches of land. See, e.g., Homestead Act of 1862, ch. 75, 12 Stat. 392 (codified as amended at 43 U.S.C. §§ 161-302 (1982)), repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, 90 Stat. 2787. Settlement occurred at a rapid pace and full fee title to much of this land passed into private hands. In the conservation-minded, Progressivist era of the first few decades of the twentieth century, the concern arose that valuable resources in the public domain should remain in public hands to avoid imprudent development, add to public revenues, and avert the threat of monopolization. See generally Colby, The New Public Land Policy with Special Reference to Oil Lands, 3 Cal.L.Rev. 269 (1915). In particular, the homestead entry laws were viewed as subject to abuse by speculators interested only in the mineral resources underlying them. See The Classification of the Public Lands, 537 USGS Bull. 38-39, Dep’t of the Interior (1913) (Bulletin 537). Presumably for fear of the consequences of legislative delay, the Department of the Interior unilaterally withdrew from homestead entry millions of acres believed to contain oil, gas, phosphate, or coal. See id. at 38-43; see also United States v. Midwest Oil Co., 236 U.S. 459, 478-79, 35 S.Ct. 309, 315, 59 L.Ed. 673 (1915) (describing executive land withdrawals). In 1910, Congress recognized the executive’s authority to make land withdrawals and provided a procedure by which the Department of the Interior could withdraw any public lands and reserve them for the public purpose set" }, { "docid": "22673594", "title": "", "text": "Justice Scalia delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. H — ( Respondent filed this action in 1985 in the United States District Court for the District of Columbia against petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U. S. C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U. S. C. §706, in the course of administering what the complaint called the “land withdrawal review program” of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e. g., Rev. Stat. §2319, 30 U. S. C. §22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U. S. C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U. S. C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President “at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the public lands of the United States . . . and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes . . . Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U. S. C. §315f, which gave the" }, { "docid": "11399886", "title": "", "text": "lands would provide settlers with unimpeded access to their property. See Buford v. Houtz, 133 U.S. 320, 326, 10 S.Ct. 305, 307, 33 L.Ed. 618 (1890). Homesteaders’ unimpeded access across federal lands remained largely unchallenged by the federal government until the late nineteenth century, when “efforts expanded to protect the nation’s natural resources from the results of what was perceived as overly generous land use policies.” 43 Op.Att’y Gen. No. 26 at 4. In 1891, Congress passed a law authorizing the President to reserve forest lands from the public domain. See Act of March 3,1891, ch. 561, § 24, 26 Stat. 1103 (codified at 16 U.S.C. § 471) (repealed 1976). Pursuant to this Act, on February 22, 1897, President Cleveland issued proclamations placing approximately twenty million acres of public land in forest reserves. See Montana Wilderness Ass’n v. United States, 496 F.Supp. 880, 888 (D.Mont.1980), aff'd on other grounds, 655 F.2d 951 (9th Cir.1981). The proclamations prevented any settlement on lands reserved in the national forest system. Following the issuance of President Cleveland’s proclamations, Congress sought to protect the access rights of homesteaders and others owning property within the newly created forest reserves by enacting the Forest Service Organic Administration Act, ch. 2, 30 Stat. 34 (1897) (codified at 16 U.S.C. §§ 473-482, 551). Section 478 of the Organic Act ensured access over national forest land to “actual settlers” and “protectfed] whatever rights and licenses with regard to the public domain existed prior to the reservation.” Montana Wilderness, 496 F.Supp. at 888 (citation omitted) (construing 16 U.S.C. § 478). By 1976, Congress had enacted a tangled array of laws granting rights-of-way across federal lands. See, e.g., 43 U.S.C. § 932 (repealed 1976) (granting rights-of-way for construction of highways over public lands). In an effort to untangle these laws and establish a statutory scheme for the management of forest lands, Congress passed the Federal Land Policy and Management Act (“FLPMA”). See Pub.L. No. 94-579, 90 Stat. 2744 (codified at 43 U.S.C. § 1701-1784 (1976)). Title V of FLPMA repealed over thirty statutes granting rights-of-way across federal lands and vested the Secretaries" }, { "docid": "23163493", "title": "", "text": "entry. The Ickes withdrawal was not authorized by either statute. The withdrawal was not for irrigation purposes. Nor does it appear to be a withdrawal of public land. The Reservation lands were “Indian trust lands” as opposed to “public lands” which might be withdrawn under the Pickett Act. See Ash Sheep Co. v. United States, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507 (1920) ; Memorandum, Mining Locations On Col-ville Surplus Lands, 60 I.D. 318 (1949). In any event, the Ickes withdrawal could not be sustained under the Pickett Act because that Act requires that withdrawn lands remain open to mineral entry. In law, the Secretary’s withdrawal is an act of the President. At present this relationship is explicit. Executive Order No. 10355, May 26, 1952, 17 F.R. 4831, superseding Executive Order No. 9337, April 24, 1943, delegated the President’s power to withdraw land under the Pickett Act or other authority to the Secretary. Even before this delegation the Secretary’s withdrawals were considered acts of the President. Wolsey v. Chapman, 101 U.S. (XI Otto) 755, 25 L.Ed. 915 (1879); Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 513, 10 L.Ed. 264 (1839). No judicial authority has been cited to the court, or found, sanctioning a non-statutory power in the Executive to withdraw Indian trust lands from mineral entry. The Interior Department, however, maintains that this power exists. Memorandum, Mining Locations On Col-ville Surplus Lands, 60 I.D. 318 (1949). Whether or not such a power might have initially been said to exist, it has often been exercised. The question of its present existence is resolved by analogy to United States v. Midwest Oil Co., 236 U.S. 459, 474, 35 S.Ct. 309, 313, 59 L.Ed. 673 (1915). In that case the power of the Executive to withdraw lands within the public domain was challenged. The court was able to find no initial source for the power exercised, but held that: “ * * * the long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the withdrawals had been made in pursuance of its consent or of" }, { "docid": "21005282", "title": "", "text": "nitrate, oil, and gas in the lands so patented, and to it, or persons authorized by it, the right to prospect for, mine, and remove such deposits from the same upon compliance with the conditions and subject to the provisions and limitations of the Act of July 17, 1914 (38 Stat. 509).” Following the issuance of the patent there apparently were no noteworthy happenings until October 29, 1963. The plaintiff herein at that time petitioned the Director, Bureau of Land Management, demanding a decision that “oil shale” was not included as “oil, gas or nitrate” as used in the 1914 Act. The Bureau of Land Management issued an opinion which became the final decision of the Department, recorded on January 20, 1964. We are called upon to determine the correctness of this decision. In support of his theory that the Department’s decision is invalid and must be reversed, plaintiff advances several arguments: First, that the patent itself must be strictly construed; that it fails to contain any mention of oil shale and at this late stage cannot be changed. Secondly, that the Secretary of Interior lacked authority to make any kind of reservation under the 1914 Act in Baxter’s patent; that the Secretary lacked power to make any kind of a classification in 1916 inasmuch as Baxter had already entered the land and occupied it under the 1891 Homestead Act. In this connection, plaintiff calls attention to what is known as the “Pickett Act” of June 25, 1910, 43 U.S.C. § 141 et seq. This expressly prohibits the President from withdrawing lands entered in good faith under the homestead laws prior to the attempted withdrawal. See United States v. Midwest Oil Co., dissenting opinion, 236 U.S. 459, 510, 35 S.Ct. 309, 327, 59 L.Ed. 673 (1915). The crux of plaintiff’s argument in this regard is that the Secretary’s power to classify lands cannot be broader than the President’s power to withdraw lands. Plaintiff also argues quite forcibly that the 1914 Act could not in any event be applied to the Baxter land in that it does not and can not" }, { "docid": "21607652", "title": "", "text": "resources in the public domain should remain in public hands to avoid imprudent development, add to public revenues, and avert the threat of monopolization. See generally Colby, The New Public Land Policy with Special Reference to Oil Lands, 3 Cal.L.Rev. 269 (1915). In particular, the homestead entry laws were viewed as subject to abuse by speculators interested only in the mineral resources underlying them. See The Classification of the Public Lands, 537 USGS Bull. 38-39, Dep’t of the Interior (1913) (Bulletin 537). Presumably for fear of the consequences of legislative delay, the Department of the Interior unilaterally withdrew from homestead entry millions of acres believed to contain oil, gas, phosphate, or coal. See id. at 38-43; see also United States v. Midwest Oil Co., 236 U.S. 459, 478-79, 35 S.Ct. 309, 315, 59 L.Ed. 673 (1915) (describing executive land withdrawals). In 1910, Congress recognized the executive’s authority to make land withdrawals and provided a procedure by which the Department of the Interior could withdraw any public lands and reserve them for the public purpose set forth in the withdrawal order. See Pickett Act of 1910, ch. 421, 36 Stat. 847 (codified as amended at 43 U.S.C. §§ 141-142 (1970)), repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, 90 Stat. 2792; see also Midwest Oil Co., 236 U.S. at 482-83, 35 S.Ct. at 316-17 (validating executive withdrawals and discussing purpose and effect of Pickett Act). The Pickett Act withdrawals were only partial, however. When originally enacted, the Act provided that lands so withdrawn would remain open for development and purchase of “minerals other than coal, oil, gas and phosphates.” Ch. 421, 36 Stat. 847. In 1912, Congress amended the Pickett Act and replaced this list of excluded minerals with a provision allowing exploration and purchase of me-talliferous minerals on withdrawn lands. See Act of August 24, 1912, ch. 369, 37 Stat. 497. Under the Pickett Act, the Department of the Interior continued with its policy of withdrawing vast quantities of land it believed valuable for petroleum (including gas), phosphate, potash, waterpower, coal, and other nonmetalliferous minerals." }, { "docid": "23163497", "title": "", "text": "authority.” S. Rep.No.2557, 84th Cong., 2nd Sess. (1956). The power to withdraw Colville reservation lands from mineral entry is also supported by the Secretary’s historically broad authority over Indian affairs and Indian lands. See, e. g., Parker v. Richard, 250 U.S. 235, 39 S.Ct. 442, 63 L.Ed. 954 (1919) (supervision of lease income); United States v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930 (1914) (authority to recommend sentences for violation of laws on liquor traffic with In-lians); Udall v. Littell, 125 U.S.App.D.C. 89, 366 F.2d 668 (1966), cert. den. 385 U.S. 1007, 87 S.Ct. 713, 17 L.Ed.2d 545, reh’r. den., 386 U.S. 939, .87 S.Ct. 452, 17 L.Ed.2d 812 (cancellation of contract of general counsel for Indian tribe). The Act of June 30, 1919, 41 Stat. 34, 43 U.S.C. § 150 prohibits creation or enlargement of Indian reservations except by Act of Congress. But the Executive power to withdraw land does not conflict with this prohibition. The Ickes withdrawal did not create the Colville reservation. Nor did it enlarge the reservation. It simply proscribed alienation of surplus lands pending consideration of complete restoration to the Tribe. In Shaw v. Work, 56 App.D.C. 55, 9 F.2d 1014, 1015 (1925) the President had temporarily withdrawn land in anticipation of legislation creating a forest reserve. The power to create forest reserves or add to existing reserves, however, rested exclusively in Congress under 16 U.S.C. § 471. The appellant contended this statute pre- eluded the withdrawal. The court held that: “ * * * The President, in the order here in question, is attempting neither to create a forest reserve, nor add to one already existing. He merely withdrew the land from settlement pending action by Congress, which alone has the power under the act to create forest reserves within the states therein named. In other words, the President withdrew the land, not to create a forest reserve, but that Congress might. However, the power of withdrawal is inherent in the President without the express authority of Congress. United States v. Midwest Oil Co., 236 U.S. 459, 35 S.Ct. 309, 59" }, { "docid": "799371", "title": "", "text": "indefinite term” should be within Congress’s exclusive control, while “[a]ll other withdrawal authority should- be expressly delegated with statutory guidelines to insure proper justification for proposed -withdrawals, provide for public participation in their consideration, and establish criteria for Executive action.” ' Id. at 54 (emphasis added). The Report, did not recommend a legislative veto over any withdrawal authority delegated to the executive. In response to the PLLRC’s recommendations, Congress in- 1976 • enacted FLPMA. FLPMA declares as the policy of the United States that “Congress exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes and that Congress delineate the extent to which the Executive may withdraw lands without legislative action,” 43 U.S.C. § 1701(a)(4); that “in administering public land statutes and exercising discretionary authority granted by them, the Secretary be required to establish comprehensive rules and regulations after considering the views of the general public[,] and to structure adjudication procedures to assure adequate third party participation, objective administrative review'of initial decisions, and expeditious decisionmaking,” 43 U.S.C. § 1701(a)(5); that “goals and objectives be established by law as guidelines for public land use planning, and that management be on the basis of multiple use and sustained yield unless otherwise specified by law,” 43 U.S.C. § 1701(a)(7) ; and that “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, ■ water resource, and archeological values; [in a manner] that, where appropriate, will preserve and protect certain public lands in their natural condition; [in a manner] that will provide food and habitat for fish and wildlife and domestic animals; and [in a manner] that will provide for outdoor recreation and human occupancy and use,” 43 U.S.C. § 1701(a)(8). As relevant here, FLPMA eliminates the implied executive branch withdrawal authority recognized in Midwest Oil, and substitutes express, limited authority. See Pub. L. 94-579, § 704, Oct. 21, 1976, 90 Stat. 2743, 2792. It reserves to Congress the power to take certain land management actions, such as making or revoking permanent withdrawals of tracts of" }, { "docid": "16243783", "title": "", "text": "orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress. June 25, 1910, c. 421, Section 1, 36 Stat. 847. The authority thus given to the president in 1910 was not changed until 1943 when Executive Order 9337 was issued delegating the power to withdraw land to the Secretary of Interior. This Order was superseded by Executive Order 10355 of 1952 to the same effect, in pertinent part, as follows: EXECUTIVE ORDER No. 10355 May 26, 1952, 17 F.R. 4831 DELEGATION OF AUTHORITY Section 1. (a) Subject to the provision of subsections (b), (c), and (d) of this section, I hereby delegate to the Secretary of the Interior the authority vested in the President by section 1 of the act of June 25, 1910, ch. 421, 36 Stat. 847 (43 U.S.C. 141) [this section], and the authority otherwise vested in him to withdraw or reserve lands of the public domain and other lands owned or controlled by the United States in the continental United States or Alaska for public purposes, including the authority to modify or revoke withdrawals and reservations of such lands heretofore or hereafter made. ****** Sec. 4. This order supersedes Executive Order No. 9337 of April 24, 1943, entitled “Authorizing the Secretary of the Interior to Withdraw and Reserve Lands of the Public Domain and Other Lands Owned or Controlled by the United States.” The government contends that prior to the issuance of these Orders, only the President could withdraw lands of the public domain. Saulque contradicts this assertion and says a withdrawal of land by the Secretary is valid because it is done under presidential authority. He quotes from our decision in United States v. Consolidated Mines & Smelting Co., Ltd., 455 F.2d 432 (9 Cir. 1971), as follows: In law, the Secretary’s withdrawal is an act of the President. At present this relationship is explicit. Executive Order No. 10355, May 26, 1952, 17 F.R. 4831, superceding Executive Order No. 9337, April 24, 1943, delegated the President’s power to withdraw land under the Pickett" }, { "docid": "22673595", "title": "", "text": "is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e. g., Rev. Stat. §2319, 30 U. S. C. §22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U. S. C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U. S. C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President “at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the public lands of the United States . . . and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes . . . Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U. S. C. §315f, which gave the Secretary of the Interior authority to “classify” public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior “to examine and classify any lands” withdrawn by these orders and by other authority as “more valuable or suitable” for other uses “and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws.” 49 Stat. 1976, 43 U. S. C. §315f (1982 ed.). The amendment also directed that “[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry.” Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U. S. C. §§1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify" } ]

[ { "docid": "17535296", "title": "", "text": "it is understood that by this agreement Seller is not dedicating to Buyer, or to Buyer’s market outlet, any portion of Seller’s gas reserves in the Gwinville Gas Field or any portion of the gas produced by Seller from its wells in said field, but that Seller is simply selling and Buyer is purchasing the quantity of gas called for in this agreement on the terms specified in this agreement and for the price set out above; * * Subsequent to the Phillips Petroleum case, decided on June 7, 1954, the Federal Power Commission supplemented the provisions of the Natural Gas Act, 15 U.S.C.A. § 717 et seq., by issuing its so-called No. 174 series of orders which required independent producers of natural gas to file rate schedules and apply for certificates of public convenience and necessity. Sun applied for and procured a certificate of public convenience and necessity authorizing the sale of natural gas to Southern. It filed the contract as a rate schedule under Section 4 of the Natural Gas Act. Prior to the termination of their agreement Sun and Southern made a new agreement in 1957 which was to become effective upon the expiration of the 1947 agreement. This provided for continued deliveries of gas in the same field and with the same facilities. The contract was, for the most part, substantially the same as that which it succeeded. The primary difference was an increase from 8f/- per Mcf to 20‡ per Mcf of gas. Sun then applied, under the new contract, for a new certificate of public convenience and necessity and filed the new contract as an initial rate schedule. The Commission rejected the application and filing on the ground that, the same service being involved, any new certificate would merely duplicate the earlier certificate which was still effective and outstanding and the proposed rate filings were of rate changes rather than initial rate filings. Protesting the Commission’s order and reserving its right to contest it, Sun resubmitted the 1957 contract as a rate change. The Commission then, as is authorized by Section 4 of the" } ]

[ { "docid": "13340559", "title": "", "text": "date, violates Sections 4(d) and 4(e) of the Act, 15 U.S.C. §§ 717c(d) and 717c(e) which provide in pertinent part: Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. ****** Whenever any such new schedule is filed the Commission shall have authority, ... to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, . . . may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect. ... In Order No. 455-A the Commission commented on its provision for advance approval of contract rate escalations. We have also been asked to clarify whether or not contract escalations approved by the Commission in a Section 2.75 proceeding would be self-operative or whether such would necessarily be subject to rate change filings under Section 4(e) of the Natural Gas Act. We believe that this inquiry is answered by Episcopal Theological Seminary of the Southwest v. F. P. C. [106 U.S.App.D.C. 37], 269 F.2d 228 (CADC), cert. denied sub nom., Pan American Petroleum Corp. v. F. P. C., 361 U.S. 895 [80 S.Ct. 197, 4 L.Ed.2d 151] (1959), wherein it was held that no rate change could become effective without a 4(e) filing. This is not to say, however, that the Commission recedes from the basic position expressed in Order No. 455 that it intends to grant sanctity of contract to the full extent that the Commission can, absent amendment of the Natural Gas Act by Congress. It is our intention to consider applications under Section 2.75 and make a one time determination of the public convenience and necessity aspects of the certificate application and the justness and reasonableness of the rates therein proposed, both as to initial" }, { "docid": "17535312", "title": "", "text": "most-favored-nation’s clause and from an automatic stepped-up escalation clause are rate changes subject to § 4 review, then sets forth as its sole reason which “disposes of the principal question presented” this language: “It necessarily follows that where, upon the termination of a contract fixing a rate which was the subject of an initial rate filing with the Commission, a new contract is made between the same parties for the same service as was provided by the terminated contract but at a higher rate,, the new rate is a rate change and subject to the provisions of Section 4 of the Act, including the provisions relating to the suspension of the rate. The rate fixed by the new contract is not an initial rate which could be changed only by order of the Commission in a proceeding under Section 5.” (Emphasis supplied.) Except for the imprimatur of this Court which states that it is law, I do not at all think it follows, either normally or naturally or necessarily, that “upon the termination of a contract” a “new contract is made between the same parties” is a rate change. To reason from existing contracts to entirely new ones after termination is a non sequitur flying in the face of Mobile. The jurisdiction of the Commission is limited. The act at one end excludes all that is encompassed within production and gathering and, at the other end, the distribution and sale of it to the local consumer. § 1(b). It does not undertake to regulate the “business” of natural gas. “Three things and three [things] only Congress drew within its own regulatory power delegated by the Act to its agent, the Federal Power Commission. These were: (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale. * * F. P. C. v. Panhandle Eastern Pipe Line Co., 1949, 337 U.S. 498, 503, 69 S.Ct. 1251, 1255, 93 L.Ed. 1499. As these producers are not engaged in transportation, the sole basis for jurisdiction is" }, { "docid": "22370857", "title": "", "text": "scheme of the Natural Gas Act which would justify the restrictive application which the Court of Appeals’ decision gives to § 4 (d) and (e). Section 4 (c) requires every natural gas company initially to file with the Commission its rates for any “sale subject to the jurisdiction of the Commission, . . . together with all contracts which in any manner affect or relate to such, rates . . . .” Section 4 (d) provides for the giving of notice of any change “in any such rate ... or contract relating thereto . . .” by filing new rate schedules with the Commission and keeping them open for public inspection. And § 4 (e) authorizes Commission review of the lawfulness' of any such changed rate. The record before us affirmatively shows that United in the filings here at issue has complied with all the duties which these sections in terms impose upon it, and there is nothing in these sections which even remotely implies that § 4 (d) and (e) procedures are applicable to the filing and review of only those rate changes whose amount has been agreed upon by the seller and buyer. The important and indeed decisive difference between this case and Mobile is that in Mobile one party to a contract was asserting that the Natural Gas Act somehow gave it the right unilaterally to abrogate its contractual undertaking, whereas here petitioner seeks simply to assert, in accordance with the procedures specified by the Act, rights expressly reserved to it by contract. Mobile makes it plain that “§ 4 (d) on its face indicates no more than that otherwise valid changes cannot be put into effect without giving the required notice to the Commission.” 350 U. S., at 339-340. (Italics supplied.) The necessary corollary of this proposition is that changes which in fact are “otherwise valid” in the light of the relationship between the parties can be put into effect under § 4 (d) by a seller through giving the required notice to the Commission. Mobile expressly notes that in the absence of any contractual relationship" }, { "docid": "23656788", "title": "", "text": "74 S. Ct. 794, 98 L.Ed. 1035. As we set forth at length in Magnolia Petroleum Company v. Federal Power Commission, 5 Cir., 236 F.2d 785, the Commission thereafter issued its series of 174-Orders in which it promulgated rules and regulations providing for the filing of rate schedules by “independent producers” of natural gas subject to the jurisdiction of the Commission in which schedules were to be set forth the terms and conditions of service and all rates and charges effective on and after June 7, 1954, for the transportation and sale of natural gas in interstate commerce. “Rate schedule” was defined in the regulations to mean “the basic contract and all supplements or agreements amendatory thereof, effective and applicable on and after June 7, 1954 * * * ” And in respect to periodic increases contained in such basic contracts the regulations provided that: “The operation of any provision of the rate schedule providing for future or periodic changes in the rate, charge, classification, or service after June 7, 1954, or the operation of any like provision in any initial rate schedule filed after June 7, 1954, shall constitute a change in rate schedule.” These regulations further provided that, with certain exceptions not here material, no change could be made in any such rate schedule without first filing a notice of change in rates not less than thirty nor more than ninety days prior to the effective date thereof pursuant to Section 4 (d) of the Natural Gas Act. On September 24, 1954, petitioner filed under protest and with jurisdictional reservations the aforementioned contract of February 9, 1954, as amended, covering its sales of natural gas to United, which when filed was assigned a number and designated a “Rate Schedule” by the Commission. Under the terms of this contract, and to the extent here pertinent, the prices to be paid for all gas to be delivered to United during the life of the contract were stipulated to be as follows: during the one year period commencing on the date of first deliveries of gas thereunder (June 1, 1954 to" }, { "docid": "17535298", "title": "", "text": "Act, suspended the effectiveness of the rate change for the statutory period of five months. At the expiration of the five-month period, the 20 ‡ rate was placed in effect and Sun undertook to make such refunds as might be required. Sun has petitioned this Court to review the order of the Commission rejecting the application for a certificate and an initial rate filing, and the order suspending the rate change. Although a number of specifications of error are made, most of them are hinged upon the proposition that the rate set forth in the new contract was an initial rate filing, and the collateral doctrine that the certificate of public convenience and necessity wdiieh was originally issued had expired and become functus officio upon the date fixed for the expiration of the first contract by its terms. It is “rates and charges” that are subject to regulation. The method of filing and regulating rates has thus been succinctly stated. “The Act requires natural gas companies to file all rates and contracts with the Commission § 4(c) and authorizes the Commission to modify any rate or contract which it determines to be ‘unjust, unreasonable, unduly discriminatory or preferential’, § 5(a). Changes to previously filed rates or contracts must be filed with the Commission at least 30 days before they are to go into effect § 4(d), and, except in the case of industrial rates, the Commission may suspend the operation of a new rate pending a determination of its reasonableness. § 4(e). If a decision has not been reached before the period of suspension expires, a maximum of five months, the filed rate must be allowed to go into effect, but the Commission’s order may be made retroactive to that date.” United Gas Pipe Line Company v. Mobile Gas Service Corporation, 350 U.S. 332, 76 S.Ct. 373, 377, 100 L.Ed. 373, 12 P.U.R.3d 112. In the Mobile case United was obligated by contract to furnish gas to Mobile at a fixed rate during the contract period of ten years. There was no provision for any different rate nor was there" }, { "docid": "16943718", "title": "", "text": "had received in 1956 was limited in term to the duration of the old contract. It accordingly filed an application for a new certificate covering the new contract, and filed the new contract as an initial rate schedule under the new certificate, pursuant to § 5 of the Act. The Commission, in a letter order of September 12, 1957, rejected the certificate application as duplicative of petitioner’s existing certificate to make sales from the field in question, and rejected the rate-schedule filing on the ground that the purported initial rate schedule was actually a change in its existing Schedule No. 55. A motion for reconsideration was later denied; and at the same time the Commission ordered suspended, under § 4 (e) of the Act, the effectiveness of the rates in the new contract, which petitioner had, after their rejection as an initial rate schedule, filed under protest, as rate changes pursuant to § 4 (d). 18 F. P. C. 609, 611. After an application for rehearing of the suspension order was rejected, petitioner petitioned for review of all these orders of the Commission in the Court of Appeals for the Fifth Circuit. That court affirmed, by a divided vote. 266 F. 2d 222. We granted certiorari. 361 U. S. 880. Petitioner’s contention here, as it was below, is that the initial certificate it obtained in 1956 was to remain in effect only during the life of the 1947 contract. This in its view would leave it free to discontinue interstate sales after the 1957 expiration of the contract, or to apply for a new certificate for new sales, and, not unimportantly, file the new sales contract as an initial rate schedule thereunder rather than as a rate change. We reject this contention and affirm the judgment of the Court of Appeals. First. The major part of petitioner’s argument is based on a want of authority in the Commission, over objection, to grant an independent producer a certificate for a longer duration than the term of a sales contract which its application seeks permission to fulfill. To be sure, if the" }, { "docid": "22755237", "title": "", "text": "to protect himself. He may, unless otherwise bound by contract, United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332 (1956), file new rate schedules with the Commission. This rate becomes effective upon its filing, subject to .the 5-month suspension provision of § 4 and the posting of a bond, where required. This not only gives the natural gas company opportunity to increase its rates where justified but likewise guarantees that the consumer may recover refunds for moneys paid under excessive increases. The overriding intent of the Congress to give full protective coverage to the consumer as to price is further emphasized in § 5 of the Act, 15 U. S. C. § 717d, which authorizes the Commission sua sponte, or otherwise, to institute an investigation into existing rates and charges and to fix them at a just and reasonable level. Under this section, however) the rate found by the Commission to be just and reasonable becomes effective prospectively only. Gas purchasers, therefore, have no protection from excessive charges collected during the pendency of a § 5 proceeding. In view of this framework in which the Commission is authorized and directed to act, the initial certificating of a proposal under § 7 (e) of the Act as being required, by the public convenience and necessity becomes crucial. This is true because the delay incident to determination in § 5 proceedings through which initial certificated rates are reviewable appears nigh interminable. Although Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, was decided in 1954, cases instituted under § 5 are still in the investigative stage. This long delay, without the protection of refund, as is possible in a § 4 proceeding, would provide a windfall for the natural gas company with a consequent squall for the consumers. This the Congress did not intend. Moreover, the fact that the Commission was not given the power to suspend initial rates under. § 7 makes it the more important, as the Commission, itself says; that “this crucial sale should not be permanently certificated unless the rate level has been" }, { "docid": "16943717", "title": "", "text": "“authorizing the sale of natural gas in the circumstances . . . described” in its application. The described circumstances consisted simply of a reference to its contract with Southern Natural, which was at the same time submitted by petitioner as its rate schedule. In an abbreviated and consolidated proceeding disposing of over 100 separate docket certificate applications from 40-odd independent producers, scattered from Colorado and New Mexico to West Virginia, the Commission on May 28, 1956, ordered issued to petitioner and each of the other applicants a certificate of public convenience and necessity, in the terms set out in the margin. Petitioner’s contract-rate-schedule was accepted as its FPC Gas Rate Schedule No. 55. The 1947 contract between petitioner and Southern Natural expired on August 26, 1957. The parties however entered into a new 20-year contract for continued sale of gas from the same field, commencing on September, 3, 1957. The contract called for an initial price increase of roughly 150 per cent, to 20 cents per Mcf. Petitioner took the view that the certificate it had received in 1956 was limited in term to the duration of the old contract. It accordingly filed an application for a new certificate covering the new contract, and filed the new contract as an initial rate schedule under the new certificate, pursuant to § 5 of the Act. The Commission, in a letter order of September 12, 1957, rejected the certificate application as duplicative of petitioner’s existing certificate to make sales from the field in question, and rejected the rate-schedule filing on the ground that the purported initial rate schedule was actually a change in its existing Schedule No. 55. A motion for reconsideration was later denied; and at the same time the Commission ordered suspended, under § 4 (e) of the Act, the effectiveness of the rates in the new contract, which petitioner had, after their rejection as an initial rate schedule, filed under protest, as rate changes pursuant to § 4 (d). 18 F. P. C. 609, 611. After an application for rehearing of the suspension order was rejected, petitioner petitioned for" }, { "docid": "17535305", "title": "", "text": "of its second contract as an initial rate filing. Where, as in this case, there could be no right to have a certificate of public convenience and necessity issued which duplicated a certificate outstanding and operative; and where, as here, the second contract was a nullity as an initial rate filing, it was proper to reject them without notice and without a hearing. Cf. United Gas Pipe Line Co. v. Mobile Gas Service Corporation, supra. The Commission suggests that the orders which Sun brings before us for review are interlocutory and that administrative remedies have not been exhausted. To support this view reliance is placed upon Shank, Trustee, v. Federal Power Commission, 5 Cir., 1956, 236 F.2d 830, 15 P.U.R.3d 408, certiorari denied 352 U.S. 970, 77 S.Ct. 361, 1 L.Ed. 2d 324, and Lee, Trustee, v. Federal Power Commission, 5 Cir., 1956, 236 F.2d 835, certiorari denied 352 U.S. 970, 77 S.Ct. 361, 1 L.Ed.2d 323. In the cited cases the orders were mere procedural steps in the administrative process. The orders which we here review are “of a definitive character dealing with the merits of a proceeding before the Commission” and, as such, are reviewable under Section 19(b) of the Act, 15 U.S.C.A. § 717r(b). Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408, 24 P.U.R.N. S. 394; Magnolia Petroleum Co. v. Federal Power Commission, 5 Cir., 1956, 236 F.2d 785, 15 P.U.R.3d 364, certiorari denied 352 U.S. 968, 77 S.Ct. 356, 1 L. Ed.2d 322. We see no need for the holding of a formal hearing and the taking of testimony where no fact issue was presented. Although the orders before us are, in a sense, procedural and interlocutory, they make a final disposition of questions of grave importance in the natural gas industry. The orders were formal determinations of rights of the petitioners and the effect of the orders was not contingent upon future administrative action. We have no doubt that these orders should be passed upon by this Court. Sun urges that its contractual relationship with Southern is" }, { "docid": "22439573", "title": "", "text": "be able to abandon their undertakings at the end of the contract term without a showing that the public convenience and necessity justify such abandonment, thus defeating the policy of § 7 (b) of the Act, and giving the industry a lever to avert regulation of any kind. Second, it concludes, producers would be able, at the expiration of their contracts, to file a higher price as an initial rate under a new certificate. This would force the Commission, it is said, to test the reasonableness of the rate under § 5 (a), ante, p. 144, where the Commission has the burden of proof and where experience has shown the procedure to be subject to great delays, and would avoid the rate-change procedures of § 4 (e), ante, p. 145, where the producer has the burden of proof and the effectiveness of the rate can be suspended pending investigation. As to abandonment, the Court’s view again rests on the erroneous notion that the Commission is charged with assuring continuity of “service” on the part of independent producers. However, § 7 (b), by its own terms, prohibits abandonment of only two things: jurisdictional facilities, and any service “rendered by means of” such facilities. The Court does not suggest that petitioners have any jurisdictional facilities. And there can be no apprehension about the pipelines, since they clearly provide a service by means of jurisdictional facilities and are certificated for an unlimited duration. There is a more basic reason, however, why the evils which the Court imagines- do not exist. The Commission is required to issue a certificate only if the applicant’s proposal is required by the public convenience and necessity. The vast majority of sales are, of economic necessity, bona fide transactions of substantial duration (see United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, at 344) and will, of course, be approved in ordinary course. But surely, if a proposal contains such disingenuous provisions as the Court suggests, its certification would not be in the public interest. The Court’s fear that denial of the certificate under" }, { "docid": "22439572", "title": "", "text": "sale terminates, except in a situation where the Commission has properly conditioned issuance on continuance of the certificate for a longer period. See post, p. 167. It is suggested that the Commission has consistently held that the obligation to provide service persists even after a particular contract terminates. See United Gas Pipe Line Co., 3 F. P. C. 3; Cabot Gas Corp., id., 357; Godfrey L. Cabot, Inc., id., 582; Panhandle Eastern Pipe Line Co., 11 F. P. C. 167, 172. All those cases, however, involved pipeline com panies which were in fact providing a continuing service and which had facilities subject to the jurisdiction of the Commission regardless of the duration of a particular contract. They serve as no authority for the present quite different situation where an independent producer is subject to the Commission’s jurisdiction only by virtue of his sales. II. The Court asserts that a construction of the statute contrary to the one it reaches will result in intolerable consequences, primarily in two respects. First, it says, producers and pipelines would be able to abandon their undertakings at the end of the contract term without a showing that the public convenience and necessity justify such abandonment, thus defeating the policy of § 7 (b) of the Act, and giving the industry a lever to avert regulation of any kind. Second, it concludes, producers would be able, at the expiration of their contracts, to file a higher price as an initial rate under a new certificate. This would force the Commission, it is said, to test the reasonableness of the rate under § 5 (a), ante, p. 144, where the Commission has the burden of proof and where experience has shown the procedure to be subject to great delays, and would avoid the rate-change procedures of § 4 (e), ante, p. 145, where the producer has the burden of proof and the effectiveness of the rate can be suspended pending investigation. As to abandonment, the Court’s view again rests on the erroneous notion that the Commission is charged with assuring continuity of “service” on the part of" }, { "docid": "22439529", "title": "", "text": "hearing, the gas com pany would have to shoulder the burden of proving that its new rates were just and reasonable. If the hearing were not concluded by the end of the suspension period, the increased rate could be collected ad interim; but the Commission is empowered to require the company to collect the increment under bond and accounting, and refund it if it could not make out its case for the increase. Clearly, the rate change provisions of §§ 4 (d) and 4 (e), rather than the “initial rate” provisions of § 4 (c), are better tailored to the situation that exists when an initial contract of sale of natural gas terminates, and the supply of gas continues, whether under a new contract or without one. When a producer commences interstate sales from a particular field, or when an interstate transmission company commences sales to a local distributing company, there are by definition no existing rates, and accordingly the protective provisions of §§ 4 (d) and (e), which are bottomed on delaying the effectiveness of, and suspending, changes, are not relevant. But of course this is not the case where one sales contract expires and service continues; in this situation, where a rate change is proposed, the protective provisions fit as well as they do in the case of a rate change made pursuant to a contract, during its term. Thus it is apparent that petitioner’s position would enable it to make what in practical effect would be rate changes, but without compliance with the procedures of §§ 4 (d) and 4 (e), and subject to revision only in procedures which are likely to “provide a windfall for the natural gas company with a consequent squall for the consumers,” as we said in Catco. 360 U. S., at 390. When attached to the leverage of a power to abandon service, at a contract’s termination, without contemporaneous Commission approval, this power to exercise contractual control not only over rates but over the mode of their regulation, would be a substantial one indeed. And, like the power to force an advance" }, { "docid": "22370856", "title": "", "text": "will, the rates offered to prospective customers; or to fix by contract, and change only by mutual agreement, the rate agreed upon with a particular customer. No more is necessary to give full meaning to all the provisions of the Act: consistent with this, § 4 (d) means simply that no change— neither a unilateral change to an ex parte rate nor an agreed-upon change to a contract — can be made by a natural gas company without the proper notice to the Commission. . . .” The Court of Appeals therefore erred in reading Mobile as limiting the procedures prescribed by § 4 (d) and (e) to instances where the parties by mutual agreement had “reformed” a rate contract. The reason these procedures were unavailable to United in Mobile was because the company had bargained away by contract the right to change its rates unilaterally, and not because § 4 does not apply to such rate changes whether made pursuant to or in the absence of a contract. Moreover, we find nothing in the scheme of the Natural Gas Act which would justify the restrictive application which the Court of Appeals’ decision gives to § 4 (d) and (e). Section 4 (c) requires every natural gas company initially to file with the Commission its rates for any “sale subject to the jurisdiction of the Commission, . . . together with all contracts which in any manner affect or relate to such, rates . . . .” Section 4 (d) provides for the giving of notice of any change “in any such rate ... or contract relating thereto . . .” by filing new rate schedules with the Commission and keeping them open for public inspection. And § 4 (e) authorizes Commission review of the lawfulness' of any such changed rate. The record before us affirmatively shows that United in the filings here at issue has complied with all the duties which these sections in terms impose upon it, and there is nothing in these sections which even remotely implies that § 4 (d) and (e) procedures are applicable to" }, { "docid": "17535304", "title": "", "text": "has the power under Section 7(c) and (e) of the Act, 15 U.S.C.A. § 717f(c, e), to issue certificates of public convenience and necessity of limited duration. Sunray Mid-Continent Oil Co. v. Federal Power Commission, 353 U.S. 944, 77 S.Ct. 792, 1 L.Ed.2d 794, 18 P.U.R.3d 320. Whether, in this case, the Commission could have granted a certificate limited to the life of the contract, without abusing its discretion, need not be decided. We find nothing to show any intent of the Petitioner to apply for a limited or conditional certificate, nor do we find anything to indicate that the Commission intended to limit its certificate. The matters to which the Petitioner points do not permit of the inference which it would have us draw. The Petitioner asserts that because of the rejection of the application for a second certificate without a hearing after notice there was a violation of the administrative requirement of Section 7(c) of the Act, 15 U.S.C.A. § 717f (c). The Petitioner makes a like contention with respect to the rejection of its second contract as an initial rate filing. Where, as in this case, there could be no right to have a certificate of public convenience and necessity issued which duplicated a certificate outstanding and operative; and where, as here, the second contract was a nullity as an initial rate filing, it was proper to reject them without notice and without a hearing. Cf. United Gas Pipe Line Co. v. Mobile Gas Service Corporation, supra. The Commission suggests that the orders which Sun brings before us for review are interlocutory and that administrative remedies have not been exhausted. To support this view reliance is placed upon Shank, Trustee, v. Federal Power Commission, 5 Cir., 1956, 236 F.2d 830, 15 P.U.R.3d 408, certiorari denied 352 U.S. 970, 77 S.Ct. 361, 1 L.Ed. 2d 324, and Lee, Trustee, v. Federal Power Commission, 5 Cir., 1956, 236 F.2d 835, certiorari denied 352 U.S. 970, 77 S.Ct. 361, 1 L.Ed.2d 323. In the cited cases the orders were mere procedural steps in the administrative process. The orders which we" }, { "docid": "17535300", "title": "", "text": "any provision made for changing the rate during the contract term. United undertook to effect a rate increase by filing a new rate schedule with the Commission. It was held that the Natural Gas Act gave no power to put unilateral rate increases into effect, and that United could procure a rate increase, if at all, only by an order of the Commission entered in a proceeding under Section 5 of the Act. It is urged that the decision in Mobile recognizes a freedom of contract in rate making applicable alike to new contracts and to renewal contracts. The “philosophy of Mobile”, as it is referred to, is such as to require, it is contended, a holding that when a contract has, by the law of contracts, terminated, the parties are permitted to fix rates for the continued service, free from Section 4 regulation, in the same manner that might have been done before the passage of the Act. We do not think the doctrine of Mobile applies in a situation such as is before us here. In United Gas Pipe Line Co. v. Memphis Light, Gas & Water Division, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153, rehearing denied 358 U.S. 942, 79 S.Ct. 344, 3 L.Ed.2d 350, it was held that Section 4 procedures were available where rate increases were proposed pursuant to a “going rate” provision in the contract. The purpose of Congress was carried out in framing its regulatory scheme “not only by preserving the ‘integrity’ of private contractual arrangements for the supply of natural gas, * * * (subject of course to any overriding authority of the Commission), but also by providing in § 4 for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review.” 358 U.S. 114, 79 S.Ct. 200, 3 L.Ed.2d 153. The same doctrine has been applied where the contract contained a “favored nation” clause and it has been held that rate increases under such a clause are subject to Section 4 of the Act. Mississippi Power & Light Co. v. Memphis Natural Gas" }, { "docid": "17535302", "title": "", "text": "Co., 5 Cir., 1947, 162 F.2d 388, 71 P.U.R., N.S., 182, certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355. So too it has been held that rate increases pursuant to the escalator clause of a contract which predated the Phillips decision of June 7, 1954, were rate changes subject to Section 4 of the Act and not initial rates subject to Commission review only under Section 5 of the Act. Bel Oil Corporation v. Federal Power Commission, 5 Cir., 1958, 255 F.2d 548, 24 P.U.R.3d 512, certiorari denied 358 U.S. 804, 79 S.Ct. 46, 3 L.Ed.2d 77. It necessarily follows that where, upon the termination of a contract fixing a rate which was the subject of an initial rate filing with the Commission, a new contract is made between the same parties for the same service as was provided by the terminated contract but at a higher rate, the new rate is a rate change and subject to the provisions of Section 4 of the Act, including the provisions relating to the suspension of the rate. The rate fixed by the new contract is not an initial rate which could be changed only by order of the Commission in a proceeding under Section 5. The foregoing disposes of the principal question presented. Other questions remain. The Petitioner contends that since its certificate originally issued authorized the sale by it of natural gas “as more fully described in the application and exhibits”, and since the certificate was issued under an order providing that the certificate “shall be effective only so long as the Applicant continues the acts or operations hereby authorized,” it must follow that the certificate expired with the contract and the rejection by the Commission of the application for a new certificate was invalid. This contention is based upon a misconception of the purpose and effect of the certificate. The authorization of the certificate is not only for the sale of gas pursuant to the contract but pursuant to and subject to the provisions of the Act and regulation pursuant thereto by the Commission. The Commission" }, { "docid": "17535301", "title": "", "text": "us here. In United Gas Pipe Line Co. v. Memphis Light, Gas & Water Division, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153, rehearing denied 358 U.S. 942, 79 S.Ct. 344, 3 L.Ed.2d 350, it was held that Section 4 procedures were available where rate increases were proposed pursuant to a “going rate” provision in the contract. The purpose of Congress was carried out in framing its regulatory scheme “not only by preserving the ‘integrity’ of private contractual arrangements for the supply of natural gas, * * * (subject of course to any overriding authority of the Commission), but also by providing in § 4 for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review.” 358 U.S. 114, 79 S.Ct. 200, 3 L.Ed.2d 153. The same doctrine has been applied where the contract contained a “favored nation” clause and it has been held that rate increases under such a clause are subject to Section 4 of the Act. Mississippi Power & Light Co. v. Memphis Natural Gas Co., 5 Cir., 1947, 162 F.2d 388, 71 P.U.R., N.S., 182, certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355. So too it has been held that rate increases pursuant to the escalator clause of a contract which predated the Phillips decision of June 7, 1954, were rate changes subject to Section 4 of the Act and not initial rates subject to Commission review only under Section 5 of the Act. Bel Oil Corporation v. Federal Power Commission, 5 Cir., 1958, 255 F.2d 548, 24 P.U.R.3d 512, certiorari denied 358 U.S. 804, 79 S.Ct. 46, 3 L.Ed.2d 77. It necessarily follows that where, upon the termination of a contract fixing a rate which was the subject of an initial rate filing with the Commission, a new contract is made between the same parties for the same service as was provided by the terminated contract but at a higher rate, the new rate is a rate change and subject to the provisions of Section 4 of the Act, including the provisions relating to the" }, { "docid": "22439528", "title": "", "text": "case, Atlantic Refining Co. v. Public Service Comm’n, supra, at 389, we had occasion to remark that “the delay incident to determination in § 5 proceedings through which initial certificated rates are reviewable appears nigh interminable.” At oral argument, counsel for the Commission confirmed that no contested major producer’s § 5 case had been finally adjudicated by the Commission in the six years since this Court’s decision in the Phillips case. In contrast to § 5 are the protections that would be available if at the conclusion of the original contract the producer’s certificate remained in full force and effect. Then the rates to be charged under a new contract or otherwise would have to be filed as rate changes under § 4 (d) of the Act, with 30 days’ notice to the Commission and the public. Under § 4 (e), the Commission, on complaint of any State, state commission, or municipality, or sua sponte, may order a hearing on the new rate, and suspend the effectiveness of the rate for five months. At the hearing, the gas com pany would have to shoulder the burden of proving that its new rates were just and reasonable. If the hearing were not concluded by the end of the suspension period, the increased rate could be collected ad interim; but the Commission is empowered to require the company to collect the increment under bond and accounting, and refund it if it could not make out its case for the increase. Clearly, the rate change provisions of §§ 4 (d) and 4 (e), rather than the “initial rate” provisions of § 4 (c), are better tailored to the situation that exists when an initial contract of sale of natural gas terminates, and the supply of gas continues, whether under a new contract or without one. When a producer commences interstate sales from a particular field, or when an interstate transmission company commences sales to a local distributing company, there are by definition no existing rates, and accordingly the protective provisions of §§ 4 (d) and (e), which are bottomed on delaying the effectiveness" }, { "docid": "22755236", "title": "", "text": "afford consumers a complete, permanent and effective bond of protection from excessive rates and charges. The heart of the Act is found in those provisions requiring initially that any “proposed servicé, sale., operation, construction,. extension, or acquisition . . . will be required by the present or future public convenience and necessity,” § 7 (e), 15 U. S. C. § 717f (e), and that all rates and charges “made, demanded, or received” shall be “just and -reasonable,” § 4, 15 U. S. C. § 717c. . The Act prohibits such movements unless and until the Commission issues a certificate of public convenience and necessity therefor, § 7 (c), 15 U. S. C. § 717f (c). Section 7 (e) vests in the Commission control over the conditions under which gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without remedy to protect himself. He may, unless otherwise bound by contract, United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332 (1956), file new rate schedules with the Commission. This rate becomes effective upon its filing, subject to .the 5-month suspension provision of § 4 and the posting of a bond, where required. This not only gives the natural gas company opportunity to increase its rates where justified but likewise guarantees that the consumer may recover refunds for moneys paid under excessive increases. The overriding intent of the Congress to give full protective coverage to the consumer as to price is further emphasized in § 5 of the Act, 15 U. S. C. § 717d, which authorizes the Commission sua sponte, or otherwise, to institute an investigation into existing rates and charges and to fix them at a just and reasonable level. Under this section, however) the rate found by the Commission to be just and reasonable becomes effective prospectively only. Gas purchasers, therefore, have no protection from excessive charges collected during" }, { "docid": "17535299", "title": "", "text": "§ 4(c) and authorizes the Commission to modify any rate or contract which it determines to be ‘unjust, unreasonable, unduly discriminatory or preferential’, § 5(a). Changes to previously filed rates or contracts must be filed with the Commission at least 30 days before they are to go into effect § 4(d), and, except in the case of industrial rates, the Commission may suspend the operation of a new rate pending a determination of its reasonableness. § 4(e). If a decision has not been reached before the period of suspension expires, a maximum of five months, the filed rate must be allowed to go into effect, but the Commission’s order may be made retroactive to that date.” United Gas Pipe Line Company v. Mobile Gas Service Corporation, 350 U.S. 332, 76 S.Ct. 373, 377, 100 L.Ed. 373, 12 P.U.R.3d 112. In the Mobile case United was obligated by contract to furnish gas to Mobile at a fixed rate during the contract period of ten years. There was no provision for any different rate nor was there any provision made for changing the rate during the contract term. United undertook to effect a rate increase by filing a new rate schedule with the Commission. It was held that the Natural Gas Act gave no power to put unilateral rate increases into effect, and that United could procure a rate increase, if at all, only by an order of the Commission entered in a proceeding under Section 5 of the Act. It is urged that the decision in Mobile recognizes a freedom of contract in rate making applicable alike to new contracts and to renewal contracts. The “philosophy of Mobile”, as it is referred to, is such as to require, it is contended, a holding that when a contract has, by the law of contracts, terminated, the parties are permitted to fix rates for the continued service, free from Section 4 regulation, in the same manner that might have been done before the passage of the Act. We do not think the doctrine of Mobile applies in a situation such as is before" } ]

[ { "docid": "22585313", "title": "", "text": "voir dire is concerned. Appellant was subsequently tried and convicted of various offenses and sentenced by the court-martial of members as noted above. On May 29,1990, the convening authority, in accordance with a pretrial agreement, approved a somewhat lesser sentence. On October 17, 1990, appellant filed his assignments of error with the Court of Military Review. The first assigned error stated: THE MILITARY JUDGE ERRED BY DENYING A DEFENSE MOTION CHALLENGING HIM FOR CAUSE BECAUSE HE HAD NO FIXED TERM OF OFFICE. On that same date, appellant filed a motion to disqualify the members of the panel of the Court of Military Review assigned to hear his case because they were not protected by a fixed term of office. The Court of Military Review denied the motion for disqualification on December 19, 1990, in an order accompanied by an opinion authored by Senior Judge Eileen Albertson. 32 MJ 809. A motion for reconsideration filed by appellant was denied on January 14, 1991. Finally, the Court of Military Review affirmed appellant’s conviction and sentence on April 25, 1991. Prelude Appellant claims that his affirmed court-martial conviction was secured in violation of “the Due Process Clause” of the Fifth Amendment to the United States Constitution. He asserts that the military judge who conducted his court-martial and the appellate military judges who decided his appeal had no “fixed terms of office” of any length. (Final Brief at 1.) He argues that the absence of fixed terms of office for these judges and their institutional control by the Judge Advocate General of the Navy precluded them from having the judicial independence required by this provision of the Constitution for judges in serious criminal cases. Accordingly, he asks that his court-martial conviction be set aside and that a new court-martial and appeal, if necessary, be ordered before military judges with some fixed term of office. E.g. R. v. Généreux [1992] 1 S.C.R. 259 (Sup.Ct. of Canada). The Government opposes this argument. It agrees with appellant that neither military trial judges nor military appellate judges have fixed terms of office and that they serve at the" } ]

[ { "docid": "12086718", "title": "", "text": "unreasonable multiplication of charges against one person. See, Discussion following Rule for Courts-Martial 307(c)(4), MCM. What happened here was essentially a single course of theft of Government funds over an extended period and not eight thefts. Therefore, the eight specifications shall be merged into one. We do not find any prejudice to the substantial rights of the appellant because the military judge considered the eight specifications as a single offense for sentencing purposes. Record at 23. Issues III-VI The remaining assignments of error lack merit. United States v. Weiss, 36 M.J. 224 (C.M.A.1992), cert. granted, — U.S. -, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993); United States v. Graf, 35 M.J. 450 (C.M.A.1992). Disposition In light of the foregoing, we affirm a finding of guilty to Article 121 and a single specification that the appellant did, at Naval Air Station, Fallon, Nevada, from 16 August 1991 to 25 March 1992, steal Basic Allowance for Quarters (with dependents) and Variable Housing Allowance, of a total value of about $2,668.35, property of the U.S. Government. The remaining finding of guilty under Article 107 is also affirmed. Upon reassessment, we apply the principles of United States v. Peoples, 29 M.J. 426 (C.M.A.1990) and United States v. Sales, 22 M.J. 305 (C.M.A.1986), and affirm the sentence as approved on review below. A new court-martial promulgating order shall be issued to reflect the above modification. Senior Judge REED and Judge LAWRENCE concur. . I. THE MILITARY JUDGE ERRED IN ACCEPTING A GUILTY PLEA TO LARCENY OF BAQ AND VHA WHERE APPELLANT WAS INITIALLY LAWFULLY ENTITLED TO THOSE ALLOWANCES BUT THEREAFTER REMAINED SILENT AS TO A CHANGE IN STATUS WHICH WOULD HAVE DISQUALIFIED HIM FROM CONTINUED ENTITLEMENT. II. SPECIFICATIONS 1 THROUGH 8 ARE AN UNREASONABLE MULTIPLICATION OF CHARGES INASMUCH AS THEY DESCRIBE A SINGLE, CONTINUOUS COURSE OF CONDUCT (THE CONTINUED RECEIPT OF BAQ AT THE \"WITH DEPENDENTS\" RATE AND VARIABLE HOUSING ALLOWANCE) BASED ON REPRESENTATIONS MADE TO PERSONNEL OFFICIALS PRIOR TO AUGUST 1991. III. THE COURT-MARTIAL DID NOT HAVE JURISDICTION BECAUSE THE MILITARY JUDGE WAS NOT APPOINTED TO A FIXED TERM OF OFFICE. (CITATION OMITTED.) IV." }, { "docid": "12139080", "title": "", "text": "24 M.J. 101 (C.M.A.1987). “Harassment” was the gravamen of the offense. Without an understanding of what “harass” or “harassment” meant, the members could not properly determine if appellant criminally engaged in that conduct. United States v. Fayne, 26 M.J. 528 (A.F.C.M.R.1988). Consequently, we conclude the military judge committed plain error in failing to define essential terms in his instructions. Johnson, 24 M.J. at 107. REMAINING ISSUES In light of the relief granted above, we need not discuss the other issues asserted concerning the rape and harassment offenses. The three issues appellant raises pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982) are without merit. United States v. Robinson, 38 M.J. 30 (C.M.A.1993) (reasonable doubt instruction); United States v. Burnette, 29 M.J. 473 (C.M.A.1990) (defense request for expert consultant in urinalysis case), cert, denied, 498 U.S. 821, 111 S.Ct. 70, 112 L.Ed.2d 43 (1990); United States v. Metcalf, 34 M.J. 1056 (A.F.C.M.R.1992) (defense request for EME testing in urinalysis case), pet. granted, 40 M.J. 36 (C.M.A.1994); see also United States v. Robinson, 39 M.J. 88 (C.M.A.1994) (defense request for blood secretor test in urinalysis case). CONCLUSION The findings of guilty of using cocaine and communicating a threat are affirmed. The findings of guilty of Charge II and its specification (raping JLH), and Charge III, specification 2 (harassing CAY) are set aside. The convening authority may order a rehearing on the two offenses set aside. If the convening authority does not conduct a rehearing on either of the two offenses, the convening authority will order a rehearing on the sentence only and not reassess the sentence without a rehearing. United States v. Peoples, 29 M.J. 426 (C.M.A.1990). Senior Judge HEIMBURG and Judge SCHREIER concur." }, { "docid": "12076078", "title": "", "text": "and inclined to follow the military judge’s instructions regarding reasonable doubt and did so, notwithstanding her answers to the trial defense counsel’s confusing questions. The remaining assignments of error have been previously decided adversely to the appellant’s positions and are, therefore, devoid of merit. Weiss v. United States, — U.S. -, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994); United States v. Corl, 6 M.J. 914 (N.C.M.R.), petition denied, 8 M.J. 41 (C.M.A.1979). Accordingly, the findings of guilty to Specifications 4, 5, and 6 of Charge III and the sentence are set aside. Specifications 4, 5, and 6 of Charge III are dismissed. The findings of guilty to Specification 3 under Charge III and to Charge III are affirmed. The case is returned to the Judge Advocate General who may return it to the same or a different convening authority who may order a rehearing on the sentence. If he finds a rehearing to be impractical, he may approve no punishment. . I. THE MILITARY JUDGE’S FAILURE TO GIVE A PROPER INSTRUCTION DEFINING \"SEXUAL HARASSMENT” CAUSED PLAIN ERROR. II. MAKING INAPPROPRIATE SEXUAL COMMENTS TO JUNIOR EMPLOYEES AT A ON-BASE CIVILIAN ESTABLISHMENT WHILE EMPLOYED AS A SHIFT MANAGER FAILS TO ESTABLISH A LEGAL OR PRIMA FACIE ARTICLE 134 VIOLATION BECAUSE SUCH CONDUCT IS NEITHER CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE NOR SERVICE DISCREDITING. (FOOTNOTE OMITTED.) III. THE MILITARY JUDGE ERRED IN FAILING TO APPLY THE \"LIBERAL GRANT MANDATE” ESPOUSED BY THE COURT OF MILITARY APPEALS WHEN THE JUDGE DENIED DEFENSE COUNSEL’S CHALLENGE FOR CAUSE AGAINST A MEMBER WHO STAT ED THAT DESPITE THE PRESUMPTION OF INNOCENCE, SHE WOULD STILL FIND THE ACCUSED GUILTY EVEN IF THE GOVERNMENT FAILED TO PROVE ITS CASE. IV. APPELLANT’S COURT-MARTIAL VIOLATED HIS FIFTH AMENDMENT DUE PROCESS RIGHT BECAUSE ARTICLE 52(a)(2), U.C.M.J., ALLOWED A THREE MEMBER SPECIAL COURT-MARTIAL PANEL TO CONVICT APPELLANT WITH THE POSSIBLE CONCURRENCE OF TWO OF THE VOTING MEMBERS. V. THE COURT-MARTIAL DID NOT HAVE JURISDICTION BECAUSE THE MILITARY JUDGE WAS NOT APPOINTED TO A FIXED TERM OF OFFICE. (CITATION OMITTED.) VI. THIS COURT HAS NO JURISDICTION BECAUSE THIS COURT’S JUDGES WERE NOT APPOINTED" }, { "docid": "1139232", "title": "", "text": "required as a matter of constitutional due process for military judges, trial or appellate. United States v. Graf, 35 M.J. 450 (C.M.A.1992). The issue is now pending before the Supreme Court. United States v. Weiss, 36 M.J. 224 (C.M.A.1992), cert. granted, — U.S. —, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993). Absent a contrary decision by the highest court, the Court of Military Appeals decision in Graf guides our resolution of this issue. VI. CONCLUSION The findings of guilty have been previously found correct in law and fact and affirmed. Plott, 35 M.J. at 519. After examining the record of trial, the assignment of errors, and the government’s reply, we conclude that the sentence adjudged on rehearing is appropriate and no error prejudicial to the substantial rights of the accused occurred. Accordingly, the findings and the sentence are AFFIRMED. Senior Judge JOHNSON (who participated in this decision before his reassignment from the Court) and Judge YOUNG concur. . We are dubious that a new pretrial advice was required for the rehearing on sentence in this case, for several reasons: a rehearing on sentence is a continuation of the trial (Beatty, 25 M.J. at 314); none of the Article 34(a), UCMJ, 10 U.S.C. § 834(a), matters are at issue in a rehearing on sentence; and a pretrial advice was done prior to the beginning of the trial and served on Sergeant Plott, satisfying all requirements. . R.C.M. 1001(g) . See MCM, Part IV, paragraph 89, for the elements of communicating indecent language." }, { "docid": "12141082", "title": "", "text": "could qualify for the self-identification program because he or she would just be coming forward to escape a random urinalysis. The appellant’s statement to the first sergeant on 28 December, that he “needed help” with his drug problem qualified him for protection under the self-identification program so that the evidence obtained from him on that date is inadmissible. See AFR 30-2, 4-2(1). There is no question but the appellant used drugs after his entry into the Drug Abuse Control Rehabilitation Program. However, any disciplinary action under the UCMJ for drug abuse under these circumstances must be based “on independently derived evidence.” See AFR 30-2, 4-2b(3)(b). In this context we interpret the phrase “independently derived evidence” as that coming from a source other than the accused. See United States v. Littlehales, 19 M.J. 512 (A.F.C.M.R.1984); affd 22 M.J. 17 (C.M.A.1986); cert. denied 476 U.S. 1174, 106 S.Ct. 2901, 90 L.Ed.2d 987 (1986). We do not consider an accused’s statement admitting drug use or the results of a test of his urine to be “independently derived evidence” within the meaning of this term and under the facts of this case. For the reasons stated, Charge I and two specifications hereafter are set aside and dismissed. See generally United States v. Martinez, ACM 25681, 19 June 1987; pet. granted 26 M.J. 63 (C.M.A.1988) (Whether the military judge erred in admitting evidence derived from appellant’s efforts to obtain help in overcoming his cocaine addiction under the AFR 30-2 self-identification program). Reassessing the sentence on the basis of the error noted and the entire record, we find appropriate only so much thereof as provides for a bad conduct discharge, confinement for 18 months, and total forfeitures. The findings of guilty and the sentence, both as modified, are AFFIRMED. Senior Judge FORAY and Judge HOLTE concur. . The appellant entered a conditional guilty plea to two allegations of using cocaine during the periods 19-28 December 1987, and 25 January —3 February 1988. [Specifications 1 and 2, Charge I], Additionally, he unconditionally pleaded guilty to multiple allegations of forgery and larceny. See R.C.M. 910(a)(2); United States v." }, { "docid": "7458676", "title": "", "text": "29 M.J. 221 (C.M.A.1989); United States v. Murphy, 26 M.J. 454 (C.M.A.1988); United States v. Griffin, 25 M.J. 423 (C.M.A.), cert. denied, 487 U.S. 1206, 108 S.Ct. 2849, 101 L.Ed.2d 886 (1988); United States v. Quesinberry, 12 U.S.C.M.A. 609, 612, 31 C.M.R. 195, 198 (C.M.A.1962); but cf. United States v. Rosato, 32 M.J. 93 (C.M.A.1991) (error to bar accused from commenting in unsworn statement on collateral matters about return-to-duty program). It is not necessarily error, however, for a military judge to answer court members’ questions on collateral consequences of sentencing alternatives. Griffin, 25 M.J. at 425; United States v. Nixon, 30 M.J. 501, 506 (A.F.C.M.R.1989). In this case, the military judge merely acknowledged the existence of two related mechanisms for administrative relief—one of which the members had apparently discussed. In subsequent comments, he clearly directed the members not to consider those or any similar extraneous matters during their deliberations. We conclude that this explicit guidance was appropriate and adequate to preclude any improper consideration by the members. See United States v. Ricketts, 1 M.J. 78 (C.M.A.1975); United States v. Cerniglia, 31 M.J. 804, 806 (A.F.C.M.R. 1990). Y The approved findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are AFFIRMED. Senior Judge LEONARD and Judge JAMES concur. . We cannot determine whether the conditional plea was properly accepted in this case. The record fails to disclose whether the ruling on the suppression motion was case-dispositive; the victims might well have testified, and the confession might have been superfluous evidence. If so, the conditional plea simply preserved for appeal an issue which was moot and yet which carried in it seeds that could have grown into an appellate reversal. We criticized this practice in United States v. Phillips, 32 M.J. 955 (A.F.C.M.R.1991), noting that one solution on appeal in such a case is to set the plea aside as improperly accepted. See R.C.M. 910(a)(2). This case was tried before we decided Phillips, before this problematic aspect of conditional pleas was revealed. However, as we noted, “Staff judge advocates and military" }, { "docid": "15057353", "title": "", "text": "marijuana use. We are convinced that the urinalysis screening method utilized for detecting and prosecuting appellant was legally sufficient to prove his guilt beyond a reasonable doubt. Accordingly, assignment of error Y is devoid of merit. Appellant cites two remaining assignments of error, which we shall briefly discuss. A. PLAIN ERROR OCCURRED WHEN REFERENCE WAS MADE BY TRIAL COUNSEL ABOUT CMC DRUG POLICY DURING PRESENTENCING ARGUMENT TO THE COURT MEMBERS AND THIS ERROR WAS NOT ADEQUATELY CURED BY THE MILITARY JUDGE IN HIS INSTRUCTIONS. The trial counsel, in the instant case, made a facially impermissible reference to the Commandant of the Marine Corps’ policy on drugs. Appellant is correct in noting that the trial counsel in the instant case was the trial counsel in United States v. Schomaker, 17 M.J. 1122 (N.M.C.M.R.1984), whose similar sentencing remarks contributed to the creation of reversible error in that case. Unlike Schomaker, here the trial counsel limited his reference to his sentencing argument, did not utilize it in direct or cross-examination of witnesses, and the military judge promptly brought the matter to the members’ attention. We find that the military judge’s curative instructions were sufficient to dispel any possible prejudice. United States v. Grady, 15 M.J. 275 (C.M.A.1983); United States v. Robertson, 17 M.J. 846 (N.M.C.M.R.1984). The assignment is without merit. B. THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED BY RULING THAT EXHIBIT (D[EFENSE] E[XHIBIT]) [“]A[”] WAS INADMISSIBLE AS EVIDENCE IN HIS BEHALF. Appellant offered into evidence, as a part of the defense case in chief, a document listing the “negative” results of eight urinalyses conducted subsequent to the “positive” result upon which his conviction is based. The military judge admitted the evidence with the following limiting instruction: ... Mr. President, members, Defense Exhibit A has been admitted for the purpose, the limited purpose, that is, this document is to be considered as some evidence which may or may not tend to discredit the expert testimony you have heard as to the reservoir theory of metabolites (remaining) in the body (after ingesting marijuana); you heard the various expert witnesses comment" }, { "docid": "7163560", "title": "", "text": "appellant; appellant’s phone calls were generalized threats against an impersonal agency, not obscene phone calls which invaded an individual’s private domain. Captain K’s experiences simply did not have such a close connection to appellant’s case that bias may be presumed. The initial premise of appellant’s argument fails. In any case, even if the facts gave rise to a presumption that CPT K was biased, the voir dire of CPT K was sufficient to rebut such a presumption. In United States v. Harris, the Court stated that a military judge may not deny a challenge for cause based solely upon the member’s declaration of impartiality where actual bias is shown or where the circumstances “raise an ‘appearance of evil’ in the eye of disinterested observers.” 13 M.J. at 292. Harris articulates a concern that the procedure for testing a court member’s impartiality be sufficient to provide a reasonable assurance that prejudice will be discovered if present. See also United States v. Mason, 16 M.J. 455 (C.M.A.1983); United States v. Nell, supra. As the probability of the existence of prejudice increases, the procedures for testing a court member’s impartiality must necessarily become more stringent to assure that such prejudice will be detected if actually present. Applying this principle to appellant’s case, we find the military judge’s questioning of CPT K was sufficient to assure that any existing prejudice would be discovered. Under these circumstances, the military judge, having personally heard and observed the challenged court member, did not abuse his discretion in denying appellant’s challenge for cause against CPT K. United States v. Pollack, 9 M.J. 577 (A.F.C.M.R.), pet. denied, 9 M.J. 393 (C.M.A.1980). Similarly, the denial of the challenge for cause against LTC H was also proper. We have considered the remaining assignments of error raised by appellant, including the contention that his sentence is too severe, and find them to be without merit. The findings of guilty and the sentence are affirmed. Senior Judge WOLD and Judge NAUGHTON concur. A challenge for cause is confined to instances where threats to impartiality are “actual” or “implied.” “Actual” bias may be shown" }, { "docid": "1085843", "title": "", "text": "PER CURIAM: Consistent with his pleas of guilty, the appellant was found guilty of two specifications of unauthorized absence, one specification of failing to obey a lawful order, and 18 specifications of making and uttering checks without sufficient funds in violation of Articles 86, 92, and 123a, respectively, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 892, 923a. A military judge sitting alone as a special court-martial sentenced the appellant to be confined for 120 days, to forfeit $500.00 pay per month for four months, to be reduced to pay grade E-l, and to be discharged with a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority suspended confinement in excess of 75 days, but otherwise approved the sentence as adjudged. The appellant assigns two errors to his court-martial. Both errors concern the qualifications of the military judge. In essence, appellant contends for the first time that his court-martial lacked jurisdiction: (1) because the military judge was not appointed in accordance with the Appointments Clause of the U.S. Constitution, and (2) because the military judge was not appointed as a military judge for a fixed term, as required by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The second assignment of error was disposed of adversely to the appellant in United States v. Graf, 32 M.J. 809 (N.M.C.M.R 1990), petition granted, 34 M.J. 169 (C.M.A.1991), and it will not be discussed further. Article II, Section 2, Clause 2 of the Constitution provides: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Assuming arguendo that this provision of the Constitution applies to military judges, the fact is that all military judges must be commissioned officers" }, { "docid": "17135813", "title": "", "text": "a fine should not normally be adjudged in the absence of unjust enrichment, where other good reasons exist fines are appropriate. See United States v. Czeck, 28 M.J. 563 (N.M.C.M.R.), petition denied, 29 M.J. 275 (C.M.A.1989). The trial counsel agreed that confinement was neither convenient nor prudent in this case. A fine was among the range of penalties authorized by law and contemplated by the appellant and his counsel. The appellant has provided no evidence that the fine is either oppressive or that he lacks the ability to pay. We specifically find that the fine was appropriate under the circumstances of this case. The appellant’s second and third assignments of error are also without merit. See United States v. Graf, 32 M.J. 809, (N.M.C.M.R.1990), aff'd, 35 M.J. 450 (C.M.A.1992); United States v. Coffman, 35 M.J. 591 (N.M.C.M.R.1992) (per curiam). Accordingly, the findings and sentence as approved on review below are affirmed. Senior Judges STRICKLAND and ORR concur. . I. A SENTENCE WHICH INCLUDES A §1,500 FINE IS INAPPROPRIATE IN THIS CASE. II. THE COURT-MARTIAL HAD NO JURISDICTION BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. But see United States v. Graf, 32 M.J. 809 (N.M.C.M.R.1990), petition granted, 34 M.J. 169 (C.M.A.1991). BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. III. THE GENERAL COURT-MARTIAL LACKED JURISDICTION BECAUSE APPELLANT'S MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. See generally U.S. Const, art. II, § 2, cl. 2; Freytag v. Commissioner of Internal Revenue, — U.S. -, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991); but see United States v. Coffman, 35 M.J. 591 (N.M.C.M.R.1992). BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. [Footnote omitted.]" }, { "docid": "15757334", "title": "", "text": "sentence, which included an unsuspended dismissal from the Marine Corps, is “appropriate.” Art. 66(c), UCMJ, 10 U.S.C. § 866(c). We note that the appellant received great benefits from his pretrial agreement in the areas of confinement and forfeitures. We conclude that this assignment of error is without merit. Assignment of Error VI Finally, the appellant claims that the military judge abused his discretion by refusing to recuse himself after indicating during voir dire that he had heard and read previously of this case. This included reading one or more unpublished appellate opinions of this court which had set aside convictions after we concluded that the appellant was not qualified to serve as a defense counsel. He also admitted to having read a newspaper article concerning the case. R.C.M. 902 provides the rules for determining whether or not the military judge should be disqualified. The relevant test is whether the military judge “has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.” R.C.M. 902(b)(1). The basis for disqualification must be personal, rather than judicial, in nature. United States v. Lewis, 6 M.J. 43, 44-45 (C.M.A. 1978). After the appellant had conducted voir dire and received completely candid answers, he challenged the military judge for cause, which was denied. Record at 97-98. Under R.C.M. 902(d), the military judge has discretion to decide whether he or she is disqualified. The military judge’s decision on the issue of recusal is subject to review for abuse of discretion. United States v. Sanchez, 37 M.J. 426, 427 (C.M.A.1993). We have no question that the military judge ruled appropriately. Therefore, this final assignment of error is without merit. Accordingly, we affirm the findings and the sentence, as approved on review below. Senior Judge KEATING and Senior Judge McLaughlin concur. . I. APPELLANT'S PLEAS OF GUILTY TO CHARGE II AND ITS TWENTY SPECIFICATIONS WERE IMPROVIDENT, AS THESE SPECIFICATIONS FAIL TO STATE AN OFFENSE. II. CHARGE II AND ITS TWENTY SPECIFICATIONS SHOULD BE DISMISSED BECAUSE THEY ARE VOID-FOR-VAGUENESS. III. PROSECUTION OF CHARGE II AND ITS 20 SPECIFICATIONS IS BARRED BY" }, { "docid": "12059089", "title": "", "text": "ORR, Senior Judge: Pursuant to his pleas, the appellant was found guilty of disobeying a prohibition against the possession of drug paraphernalia and using LSD in violation, respectively, of Articles 92 and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a. He was sentenced by the military judge to confinement for 2 months, the forfeiture of $540.00 pay per month for 2 months, reduction to pay grade E-l, and a bad-conduct discharge. The appellant had negotiated a pretrial agreement with the convening authority, however, that provided for the suspension of any punishment to confinement and any forfeitures for 6 months from the date of trial. When and how this agreement and the suspensions were carried out are the basis for the first two of the appellant’s seven assignments of error. Following the U.S. Supreme Court decision in Weiss v. United States, — U.S. -, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994), the appellant withdrew Assignments of Error III through VI. The seventh is also without merit. See United States v. Mitchell, 39 M.J. 131 (C.M.A.1994). In the first assigned error, the appellant complains that the officer exercising general court-martial jurisdiction (OEGCMJ) over his unit improperly vacated the suspensions for misconduct that occurred after trial but prior to the convening authority’s action on the case. See United States v. Kendra, 31 M.J. 846 (N.M.C.M.R.1990), pet. denied, 32 M.J. 317 (C.M.A.1991); Rule for Courts-Martial (R.C.M.) 1109(b)(1). In the second, the appellant complains that his due process rights in connection with the vacation hearing were violated by the requirement that the special court-martial convening authority serve as the hearing officer. See R.C.M. 1109(d)(1)(A). We have concluded that the first is without merit, and we do not reach the constitutional issue in the second because the Government did not satisfy the requirements of the Manual for Courts-Martial, United States, 1984 (M.C.M.), in conducting the hearing and acting on the recommendation. We have conducted this review of the vacation proceedings as part of our authorization under Article 66, UCMJ, 10 U.S.C. § 866. See United States v. May, 49 C.M.R. 625, 1974" }, { "docid": "14945862", "title": "", "text": "his home. SFC S. agreed, in part because appellant was his superior. K.S. testified that on three occasions the appellant transported her from her home on Fort Riley to his home off post, where appellant committed the offenses. At trial, the appellant’s motion to dismiss for lack of subject matter jurisdiction was denied by the military judge. Two matters are clear. First, the offenses did not occur on a military installation. Second, there is no subject matter jurisdiction in this case unless appellant’s offenses were service connected. The law on service connection has been defined, and redefined, by the United States Supreme Court and the United States Court of Military Appeals. The present state of the law, its background, and the rationale for it, are set out in United States v. Lockwood, 15 M.J. 1 (C.M. A.1983). We find that there is sufficient evidence in this case, as outlined above, to establish that the offenses were service connected. See United States v. Mauck, 17 M.J. 1033 (A.C.M.R.1984); United States v. Wierzba, 11 M.J. 742 (A.F.C.M.R.), pet. denied, 12 M.J. 75 (C.M.A.1981). This Court agrees with appellant that the charges are multiplicious for findings and sentence. United States v. Rodriquez, 18 M.J. 363 (C.M.A.1984). The military judge considered them so for sentencing and thus no prejudice befell appellant as a result of this error. The remaining assignment of error is without merit. The findings of guilty of Charge II and its Specification (Article 134, UCMJ) are set aside. The findings of guilty of Charge I and its Specification (Article 133, UCMJ) and the sentence are affirmed. This Court finds as fact that the appellant is guilty of Charge II and its Specification. Accordingly, if any reviewing authority subsequently concludes that prejudicial error has tainted the findings of guilty of Charge I and its Specification and orders these findings set aside, the findings of guilty of Charge II and its Specification can be revived and affirmed without a rehearing. See United States v. Zupancic, 18 M.J. 387, 389 (C.M.A.1984). Senior Judge RABY concurs. Judge COHEN did not participate in the decision." }, { "docid": "1186883", "title": "", "text": "not raised as an issue on appeal. We thus do not face the issue of whether the consent was voluntary under the circumstances of this case. Mil. R.Evid. 314(e); R.C.M. 905(e); see United States v. Roa, 24 M.J. 297 (C.M.A.1987). . Additionally, we note that before he authenticated the record of trial, the military judge corrected errors on 28 separate pages. He made a correction in the very paragraph that contained the erroneous instruction, two sentences before his misstatement. He did not, however, note the error that is the subject of our review. . The specified issue was: WHETHER THE FINDINGS OF GUILTY TO THE CHARGE AND SPECIFICATION CAN BE SUSTAINED WHEN THE MILITARY JUDGE PROVIDED THE FOLLOWING ERRONEOUS INSTRUCTION ON FINDINGS TO THE MEMBERS: \"UNLESS YOU’RE SATISFIED, BEYOND A REASONABLE DOUBT, THAT THE ACCUSED WAS NOT AWARE THAT HE WAS USING A CONTROLLED SUBSTANCE, YOU MAY NOT FIND HIM GUILTY.’’ . In United States v. Turner, 30 M.J. 1183 (A.F.C.M.R.1990), we commended the military judge for providing written instructions on findings to the court members. Such a practice \"significantly reduces the possibility of misunderstanding instructions and the need for returning to open sessions in the middle of deliberation to re-instruct or answer questions on instructions.” 30 M.J. at 1185 (footnote). Written instructions in this case could have averted the instructional error. . We look with special scrutiny at the facts in this case because it involves a prosecution for wrongful use of cocaine based on results of a urinalysis test. The possibility that the accused unknowingly ingested the drug has been carefully considered. We distinguish the instructional error here from cases such as United States v. Brown, 26 M.J. 266 (C.M.A.1988), wherein the instructions omitted any mention of the government’s need to prove \"knowledge” in order for the members to convict." }, { "docid": "1139231", "title": "", "text": "trial after it was authenticated, he requested the staff judge advocate to withdraw the recommendations to allow “comment and review,” but was refused. Although he cites no harm resulting from the fact that his counsel was unable to review the record before authentication, Sergeant Plott urges us to “find error.” We decline to issue what amounts to a declaratory judgment. Our guiding principles must flow from the UCMJ, Article 59(a) of which says “A finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” V. FIXED TERMS FOR TRIAL AND APPELLATE MILITARY JUDGES In his final assertion of error, Sergeant Plott claims he was denied the due process and equal protection under the law afforded by the Fifth Amendment to the Constitution because he was denied trial and appellate military judges who enjoy the protection of fixed terms. The Court of Military Appeals has addressed this issue, and found a fixed term of office is not required as a matter of constitutional due process for military judges, trial or appellate. United States v. Graf, 35 M.J. 450 (C.M.A.1992). The issue is now pending before the Supreme Court. United States v. Weiss, 36 M.J. 224 (C.M.A.1992), cert. granted, — U.S. —, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993). Absent a contrary decision by the highest court, the Court of Military Appeals decision in Graf guides our resolution of this issue. VI. CONCLUSION The findings of guilty have been previously found correct in law and fact and affirmed. Plott, 35 M.J. at 519. After examining the record of trial, the assignment of errors, and the government’s reply, we conclude that the sentence adjudged on rehearing is appropriate and no error prejudicial to the substantial rights of the accused occurred. Accordingly, the findings and the sentence are AFFIRMED. Senior Judge JOHNSON (who participated in this decision before his reassignment from the Court) and Judge YOUNG concur. . We are dubious that a new pretrial advice was required for the rehearing on sentence in this" }, { "docid": "12280254", "title": "", "text": "pet. denied 23 M.J. 266 (C.M.A.1986); R.C.M. 1001(g). In order to constitute plain error, the error must be obvious and substantial and it must have had an unfair prejudicial impact on the members’ deliberations. United States v. Fisher, 21 M.J. 327 (C.M.A.1986). The error in sentencing argument in appellant’s case was obvious and substantial. Senior Judge Ferguson pointed out in Johnson that an accused has a fundamental right to plead not guilty and a plea of not guilty is simply an exercise of an absolute Constitutional protection and improper comment on this right is “intolerable.” 1 M.J. at 215; Cf. United States v. Chaves, 28 M.J. 691 (A.F.C.M.R.1988) (military judge’s instruction including lack of remorse as aggravating factor); United States v. Rogan, 19 M.J. 646 (A.F.C.M.R. 1984) (post-trial review recommending against rehabilitation because of failure to admit guilt). Appellant’s case was intensely litigated and involved two days of trial. At the time of his trial, he was a technical sergeant with over 16 years of excellent service with no prior disciplinary problems. Despite this record, appellant was sentenced to a bad conduct discharge, forfeiture of $466.00 pay per month for six months, and reduction to airman basic. Further, this sentence was imposed by a court consisting entirely of members with no prior court-martial experience. Allowing the court members to deliberate on sentence with an impression that they could consider appellant’s failure to admit guilt as evidence of lack of rehabilitation created a strong possibility of substantial prejudice on the consideration of an appropriate sentence. Since we cannot accurately determine what sentence may have been adjudged absent the prejudicial error, we set aside appellant’s sentence. United States v. Peoples, 29 M.J. 426 (C.M.A.1990). We have examined the record of trial, the assignments of error and the government’s reply. The findings of guilty are correct in law and fact and are affirmed. Having found error which materially prejudiced the substantial rights of the appellant, the sentence is set aside. A rehearing may be held. Senior Judge MURDOCK concurs. Judge RIVES did not participate. We commend the military judge for providing the court" }, { "docid": "1117257", "title": "", "text": "UCMJ, McCarthy, Boykin, Care, and Wimberly. Rather than being a retreat from Care, they set out procedures that ensure compliance with Care, procedures that derive from our many years of trial and appellate experience with thousands of providence inquiries. VIII. We have considered the assigned errors and find no merit in them. Accordingly, the findings and sentence, as approved on review below, are affirmed. Chief Judge LARSON, Senior Judges WELCH, ORR, REED, MOLLISON, JONES, and Judges HAMILTON, DeCICCO, and GUERRERO concur. . I. APPELLANT’S PLEAS OF GUILTY ARE IMPROVIDENT IN THAT THE RECORD FAILS TO ESTABLISH AN ELEMENT OF THE OFFENSES AND THE REQUISITE FACTUAL PREDICATE. II. THE CONVENING AUTHORITY ERRED BY ACTING TO APPROVE A DISMISSAL BASED UPON A RECORD LACKING ANY INDICATION OF RECEIPT OF A STAFF JUDGE ADVOCATE’S PRETRIAL ADVICE LETTER, PRIOR TO REFERRAL OF APPELLANT’S CASE TO TRIAL BY GENERAL COURT-MARTIAL. III. THE CONVENING AUTHORITY HAS FAILED TO FOLLOW THE TERMS OF APPELLANT’S PRETRIAL AGREEMENT AND ITS INCORPORATED WAIVER OF AN INVESTIGATION UNDER ARTICLE 32, UCMJ. IV. THE COURT-MARTIAL HAS NO JURISDICTION BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. (CITATION AND FOOTNOTE OMITTED.) V. THE COURT-MARTIAL LACKED JURISDICTION BECAUSE APPELLANTS MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. (CITATIONS AND FOOTNOTE OMITTED.) . DOES THE PROVIDENCE INQUIRY CONTAIN AN ADEQUATE FACTUAL BASIS TO SUPPORT APPELLANT’S GUILTY PLEAS WHEN THE MILITARY JUDGE DID NOT ASCERTAIN FROM APPELLANT THAT THE FACTS CONTAINED IN THE STIPULATION OF FACT (DEFENSE EXHIBIT A) WERE TRUE, SEE UNITED STATES V. CANTU, 30 M.J. 1088, 1090 (N.M.C.M.R.1989); UNITED STATES V. ENLOW, 26 M.J. 940, 945 (A.C.M.R.1988), AND DID NOT DISCUSS THE FACTS CONTAINED IN THE STIPULATION" }, { "docid": "12139079", "title": "", "text": "alleged as a violation of Article 134, UCMJ, for failing to state an offense as no such offense appeared in the underlying statute, 10 U.S.C. § 934, or the Manual for Courts-Martial, United States, 1984. The military judge concluded the government’s crafted specification alleged an offense and denied relief. However, the military judge did not define the terms “harass” or “harassment” for the members when instructing them on the following elements of the offense: (1) \"On divers occasions at the time and place alleged, appellant wrongfully harassed CAY by stalking her and calling her repeatedly after being told not to call, trespassing at her home, and by making repeated, unwanted sexual advances, and (2) Under the circumstances, appellant’s conduct was to the prejudice of good order and discipline in the armed forces or service discrediting. The defense did not object. The military judge has a sua sponte duty to instruct the members on the elements of an offense, including defining terms essential to a proper understanding of the elements. See generally United States v. Johnson, 24 M.J. 101 (C.M.A.1987). “Harassment” was the gravamen of the offense. Without an understanding of what “harass” or “harassment” meant, the members could not properly determine if appellant criminally engaged in that conduct. United States v. Fayne, 26 M.J. 528 (A.F.C.M.R.1988). Consequently, we conclude the military judge committed plain error in failing to define essential terms in his instructions. Johnson, 24 M.J. at 107. REMAINING ISSUES In light of the relief granted above, we need not discuss the other issues asserted concerning the rape and harassment offenses. The three issues appellant raises pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982) are without merit. United States v. Robinson, 38 M.J. 30 (C.M.A.1993) (reasonable doubt instruction); United States v. Burnette, 29 M.J. 473 (C.M.A.1990) (defense request for expert consultant in urinalysis case), cert, denied, 498 U.S. 821, 111 S.Ct. 70, 112 L.Ed.2d 43 (1990); United States v. Metcalf, 34 M.J. 1056 (A.F.C.M.R.1992) (defense request for EME testing in urinalysis case), pet. granted, 40 M.J. 36 (C.M.A.1994); see also United States v. Robinson, 39 M.J. 88" }, { "docid": "21685769", "title": "", "text": "to the appellant at trial. Our examination of these errors does not indicate any prejudicial error. Under the rationale of United States v. Hill, 27 M.J. 293, 296-297 (C.M.A.1988), we find and hold that the so-called allegations of error set forth by the trial defense counsel in his R.C.M. 1105-1106 response would not, in any sense, have resulted in a favorable recommendation by the staff judge advocate or a favorable action for the appellant by the convening authority. Consequently, we find the staff judge advocate’s error in failing to comment thereon, was, in this instance, harmless. United States v. Hill 27 M.J. at 296-297. V The court has also examined the personal allegations of the appellant as noted, and insofar as they are not included in the assignments of error of appellate defense counsel, they are deemed to be without merit or constitute harmless errors. Finally, the allegations of error raised by appellant through appellate defense counsel not specifically discussed in parts I through III above are deemed to constitute error; however, we find no prejudice to this appellant. Accordingly, the errors were harmless. See Article 59, UCMJ, 10 U.S.C. § 859. Accordingly, the findings of guilty and the sentence are affirmed. Judge KENNETT concurs. WERNER, Judge, concurring: The majority opinion correctly applies the Supreme Court analysis of New York v. Burger and finds a constitutionally permissible exception to the warrant requirement of the Fourth Amendment. This exception was, however, previously recognized by this court in United States v. Greene, 44 C.M.R. 420 (A.C.M.R), petition denied, 44 C.M.R. 939 (C.M.A.1971), and acknowledged by the United States Court of Military Appeals in United States v. Carson, 46 C.M.R. 203 (C.M.A.1973), and United States v. Hamilton, 46 C.M.R. 209. In Carson and Hamilton, the exception was referred to as a “customs-like warrantless search.” The correct application of the Burger analysis in the case at bar reaffirms the viability of this military exception to the warrant requirement of the Fourth Amendment. . The appellant had taken a urinalysis test prior to departure which subsequently tested positive for cocaine. . In addition to the" }, { "docid": "21665997", "title": "", "text": "matter which you were taking up that would be in the case of the United States Government v. You, am I correct? ACC: Yes, sir. The subsequent colloquy covered the third and fourth elements of the offense. These responses indicate that appellant’s plea was based on his belief not that criminal proceedings were pending at the time of his providing the sample rather that criminal proceedings would be pending in the future if he provided a sample of his urine. His responses indicate that he did not concede or believe that the urinalysis test itself was a criminal proceeding. Since his guilty plea was entered immediately after the military judge had ruled that appellant made a valid self-referral prior to the urinalysis and that the results of the positive urinalysis were inadmissible in evidence, there exists no apparent objective “reason to believe that there ... would be criminal proceedings pending” against appellant if he provided a sample of his urine that tested positive. The military judge failed to address the implication of his prior ruling as it related to this aspect of the guilty plea, and nothing suggests that appellant or even his counsel recognized the effect the ruling might have on the validity or wisdom of the guilty plea. A guilty plea may not be accepted unless it has a factual basis. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); Rule for Courts-Martial (R.C.M.) 910(e), Manual for Courts-Martial, United States, 1984. The accused’s legal conclusions do not establish a factual basis for the plea; United States v. Terry, 21 U.S.C.M.A. 442, 45 C.M.R. 216 (1972); United States v. Davis, 32 M.J. 951 (N.M.C.M.R.1991), rather the factual basis he relates during the inquiry must objectively support the guilty plea. United States v. Davenport, 9 M.J. 364 (C.M.A.1980); United States v. Moglia, 3 M.J. 216 (C.M.A.1977). We find an inadequate factual basis for appellant’s plea of guilty to obstruction of justice in appellant’s cursory responses to the military judge’s brief questions. The finding of guilty to Specification 3 of Charge I is set aside and dismissed. The findings" } ]

[ { "docid": "12457815", "title": "", "text": "BY THE COURT: On June 8,1988, this Court dismissed the appeal in this pro se prisoner civil rights suit because the notice of appeal was not filed within the time prescribed by Fed.R. App.P. 4(a)(1). On June 24,1988, the appellant filed a petition for rehearing alleging that he had placed his notice of appeal in the prison mail box on February 28, 1988, in time to reach the district court by March 2, 1988, the last day for filing a timely notice of appeal. The jurisprudence of this Court, up to that date, would have compelled a denial of the rehearing. See Sanchez v. Board of Regents of Texas Southern University, 625 F.2d 521, 522 (5th Cir.1980) (deposit of notice of appeal into mail not the equivalent of filing it). On the same day Thompson filed his petition for rehearing, the Supreme Court issued its decision in Houston v. Lack, — U.S. -, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston the Court held that a prisoner’s notice of appeal is timely if it is delivered to the prison authorities, for forwarding to the Clerk of Court, within the time prescribed by Rule 4(a)(1). Id. 108 S.Ct. 2383. In Houston, the prisoner was able to prove from prison mail logs that he had delivered the notice of appeal to the prison mail room within the time for filing an appeal. In Thompson’s case, however, Thompson’s assertion that he mailed the notice of appeal on time is unsupported by the record. In response to Houston v. Lack, we GRANT the petition for rehearing, WITHDRAW the opinion of June 8, 1988, and REMAND to the district court to determine if the notice of appeal should be deemed timely. Upon making the determination, the district court shall return the case to this Court for further proceedings or dismissal, as may be appropriate." } ]

[ { "docid": "23034016", "title": "", "text": "a section 1983 action, the court decided that the prisoner practically was acting pro se in filing his appeal and applied Houston.)', Lewis, 947 F.2d at 735-36 (Applying Houston in a pro se prisoner’s section 1983 action caused the complaint to be filed timely within the state two-year statute of limitations.); Lomax v. Armontrout, 923 F.2d 574, 575 (8th Cir.) (Using the Houston rationale, the certificate of service on a pro se habeas petitioner’s notice of appeal was used as the filing date to make the notice timely.), cert. denied, - U.S. -, 112 S.Ct. 60, 116 L.Ed.2d 36 (1991); Hostler, 912 F.2d at 1160-61 (Houston applies retroactively to pro se state prisoners’ appeals in section 1983 actions.); Burrell v. Newsome, 883 F.2d 416, 417 (5th Cir.1989) (Under Houston, a pro se state prisoner’s appeal in a section 1983 case was filed timely within the state two-year statute of limitations.); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (per curiam) (Houston applied in a section 1983 case to filing of a state pro se prisoner's objections to a magistrate, judge’s report and recommendation, which the district court had found to be untimely.), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Ortiz, 867 F.2d at 148-49 (Houston was used to remedy the late filing of a complaint in a section 1983 case because the initial, timely filed complaint was returned to the prg se prisoner for corrections.); Grana, 864 F.2d at 315-16 (Applying Houston, any delay by prison officials in transmitting a notice of a judgment or final order to a federal pro se prisoner should be excluded from the computation time for taking an appeal.); Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988) (per curiam) (Even without a certificate of service, the signature of a pro se state prisoner on a timely notice of appeal complies with Houston), Thompson v. Montgomery, 853 F.2d 287, 288 (5th Cir.1988) (per curiam) (Based on Houston, a civil rights action was remanded to district court for determination of whether any documentation supported the pro se prisoner’s assertion that" }, { "docid": "23034018", "title": "", "text": "he timely placed his notice of appeal in the prison mailbox.); Smith, 853 F.2d at 161-62 (Houston is applicable to a motion to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e) for a pro se state prisoner in a section 1983 action.). . Federal Rule of Appellate Procedure 3(a) states that \"An appeal ... shall be taken by filing a notice of appeal with the clerk of the district court,\" and Federal Rule of Appellate Procedure 4(a)(1) says that a notice of appeal \"shall be filed with the clerk of the district court.” Federal Rule of Civil Procedure 5(e) states that \"[t]he filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court.” . Houston is restricted to federal court filings; a notice of appeal given to prison authorities for delivery to a person or entity other than a federal court is not included in \"Houston's mailbox rule.” Wilder v. Chairman of Cent. Classification Bd., 926 F.2d 367, 370-71 (4th Cir.) (Pro se inmate addressed and sent his notice of appeal in a section 1983 case to a friend for subsequent forwarding to the district court.), cert. denied, - U.S. -, 112 S.Ct. 109, 116 L.Ed.2d 78 (1991). .While the Fourth Circuit recognized that state statutes of limitation provide the period within which a section 1983, personal injury action can be filed, it concluded that state tolling provisions are not applicable. Lewis, 947 F.2d at 735 (citing Wilson, 471 U.S. at 280, 105 S.Ct. at 1949). The court based this differentiation on the historical distinction between diversity and federal question cases, such as a section 1983 case. Id. (citing West v. Conrail, 481 U.S. 35, 39, 107 S.Ct. 1538, 1541-42, 95 L.Ed.2d 32 (1987)). . In Johnson’s case, the government also argues that, even if Houston is applicable, his federal tort claim cannot be incorporated because the motion did not name the United States as a defendant and was against defendant-appellee Southerland solely. Consequently, the government appears to argue lack of notice, since" }, { "docid": "23034015", "title": "", "text": "Civil Procedure 59(e) timely, when ”[i]t is clear that when [the pro se prisoner] put his motion in the envelope (even before he gave it to prison authorities to mail) his motion was untimely.\"); see also United States v. Locke, 471 U.S. 84, 101, 105 S.Ct. 1785, 1796, 85 L.Ed.2d 64 (1985) (\"Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.”). . In a pro se prisoner's section 1983 action, the Second Circuit found that the prison mail log showing when the inmate received correspondence from the district court was suggestive of prison officials' confiscating some of the prisoner’s legal papers and indicated when his complaint was received for mailing to district court. Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). . See, e.g., Vaughan v: Ricketts, 950 F.2d 1464, 1466-68 (9th Cir.1991) (While prisoner’s counsel had not withdrawn formally in a section 1983 action, the court decided that the prisoner practically was acting pro se in filing his appeal and applied Houston.)', Lewis, 947 F.2d at 735-36 (Applying Houston in a pro se prisoner’s section 1983 action caused the complaint to be filed timely within the state two-year statute of limitations.); Lomax v. Armontrout, 923 F.2d 574, 575 (8th Cir.) (Using the Houston rationale, the certificate of service on a pro se habeas petitioner’s notice of appeal was used as the filing date to make the notice timely.), cert. denied, - U.S. -, 112 S.Ct. 60, 116 L.Ed.2d 36 (1991); Hostler, 912 F.2d at 1160-61 (Houston applies retroactively to pro se state prisoners’ appeals in section 1983 actions.); Burrell v. Newsome, 883 F.2d 416, 417 (5th Cir.1989) (Under Houston, a pro se state prisoner’s appeal in a section 1983 case was filed timely within the state two-year statute of limitations.); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (per curiam) (Houston applied in a section 1983 case to filing of a state pro se" }, { "docid": "23034007", "title": "", "text": "its important policy concerns” indicate that it should be applied in contexts other than habeas cases when prisoners act pro se.). Further, the Court has emphasized' “that the requirements of the rules of procedure should be liberally construed and that ‘mere technicalities’ should not stand in the way of consideration of a case on its merits.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 316, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988). In keeping with the Court’s clear direction in Houston to provide pro se prisoners equal access to the courts with other litigants, we do not view the distinction between a federal pro se prisoner filing a federal tort claim to be “meaningfully distinguishable” from a state pro se prisoner filing a section 1983 action. Grana, 864 F.2d at 315. “Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel.” Oritz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). Therefore, we now hold that this circuit extends Houston to pro se prisoners filing complaints in section 1983 cases and claims under the Federal Tort Claims Act. In these cases, the date of filing shall be that of delivery to prison officials of a complaint or other papers destined for district court for the purpose of ascertaining timeliness. “The teaching of Houston is that prison delay beyond the litigant’s control cannot fairly be used in computing time for appeal.” Grana, 864 F.2d at 316. Because the respective actions of Garvey and Johnson would have been filed timely within the operative statutes of limitation had the dates of delivery to prison authorities been used, these cases must be reinstated for adjudication on the merits in district court. III. CONCLUSION The respective district courts in the Garvey and Johnson cases dismissed the pro se prisoners’ actions because they were not filed timely. Under our extension of Houston, announced herein, the section 1983 complaint and the federal tort claim in the respective cases were filed timely when they were delivered by" }, { "docid": "23216288", "title": "", "text": "v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), upon which Houston itself relied, provided further support for the proposition that prison delay cannot undo an otherwise timely appeal. In Fallen, a pro se prisoner litigant proved that he had delivered his notice of appeal to prison authorities for mailing to the clerk of court within the 10-day appeal period notwithstanding the fact that the clerk’s office did not receive the notice of appeal until after the appeal period expired. Emphasizing “the fact that the Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances,” the Supreme Court concluded that the prisoner had done all he could under the circumstances, and therefore declined to read the rules to bar his appeal. Id. at 142, 84 S.Ct. at 1691; see also Torres v. Oakland Scavenger Co., — U.S. —, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988) (emphasizing “the important principle ... that the requirements of the rules of procedure should be liberally construed and that ‘mere technicalities’ should not stand in the way of consideration of a case on its merits.”). In Smith v. Evans, 853 F.2d 155, 161 (3d Cir.1988), we were faced with an untimely motion by a prisoner to alter or amend the district court’s judgment pursuant to Fed.R.Civ.Pro. 59(e), which led to an untimely notice of appeal. We were potentially confronted with a similar question of how to accommodate strict jurisdictional appellate time limitations with basic fairness to imprisoned pro se litigants. Smith, 853 F.2d at 162. We noted that Houston v. Lack demonstrated the Supreme Court’s particular solicitousness of the need to preserve the rights of pro se prisoners to appeal where the impediment to timely filing arises from the process of transmitting mail from the prison over which the prisoner has no control. We further noted that the facts of Smith especially warranted application of the Houston principle since the time limit for filing a motion to amend, like the time limit involved in the case at bar, is" }, { "docid": "23696867", "title": "", "text": "have timely delivered notices of appeal to prison authorities — applies with equal force to section 1983 actions.” Hamm v. Moore, 984 F.2d at 892, citing Hostler v. Groves, 912 F.2d 1158, 1161 (9th Cir.1990) (§ 1983 actions), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991). \"In fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.” Hostler v. Groves, 912 F.2d at 1161. Other circuits have extended the rule in Houston v. Lack to other pro se prisoner filings. See United States v. Moore, 24 F.3d 624 (4th Cir.1994) (notice of appeal in criminal matter); Dory v. Ryan, 999 F.2d 679 (2d Cir.1993) (§ 1983 complaint), modified on other grounds, 25 F.3d 81 (2d Cir. 1994); Thompson v. Rasherry, 993 F.2d 513, 515 (5th Cir.1993) (per curiam) (objections to magistrate judge’s report and recommendation); Garvey v. Vaughn, 993 F.2d 776 (11th Cir.1993) (§ 1983 complaints and claims under Federal Tort Claim Act); Faile v. Upjohn Co., 988 F.2d 985, 988-89 (9th Cir.1993) (all filings); Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (Rule 59(e) motion); Lewis v. Richmond City Police Dep't, 947 F.2d 733, 735-36 (4th Cir.1991) (per curiam) (civil complaints); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (objections to magistrate judge's report and recommendation), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (Rule 59(e) motion); Moskovits v. DEA, 774 F.Supp. 649, 653 (D.D.C.1991) (forfeiture response)." }, { "docid": "22314645", "title": "", "text": "prisoner filings and held that a pro se inmate’s notice of appeal is deemed filed at the moment the notice is delivered to prison authorities for forwarding. Under Houston, the prison mail room is essentially “an adjunct of the clerk’s office,” and a juris-dictionally sensitive document is deemed filed on deposit. In re Flanagan, 999 F.2d 753, 759 (3d Cir.1993). A showing of delay on the part of the prison is thus unnecessary. Id. We noted that the prisoner in Grana faced a similar dilemma, given his lack of control over his filing, dependency on the prison authorities for delivery, and the inability to contact the court clerk personally to determine the status of his case. Grana, 864 F.2d at 315. For these reasons, we “perceiv[ed] no difference between delay in transmitting the prisoner’s papers to the court and transmitting the court’s final judgment to him so that he may prepare his appeal.” Id. at 316. Grana thus held that any delay by the prison in transmitting notice of the district court’s order is excluded from the computation of the time for filing a notice of appeal. Id. Grana makes clear that only delays caused by the prison warrant tolling of the filing deadlines, and “[t]o the extent that the delay represents slow mail, there is nothing that this Court can do to preserve an appellant’s right to appellate review.” Id. (citing Fed.R.Civ.P. 77(d)). We see no reason why Grana’s exclusion of prison delays from the time limits of jurisdictionally sensitive filings should not apply to motions for reconsideration. The timeliness of a motion under either Civil Rule 59 or 60 is critical to appellate jurisdiction. Unreasonable delays within the prison mail system might deprive the district court of the opportunity to reconsider its own determinations, and eliminate further appellate review. Accordingly, a prison’s actual delay or interference in the delivery of a final order of the district court is excluded from the calculation of the timeliness of motions for reconsideration under Federal Rule of Civil Procedure 59 or 60 filed by pro se inmates. Unlike outgoing delays occurring after" }, { "docid": "23034014", "title": "", "text": "findings. Stokes v. Singletary, 952 F.2d 1567, 1576 (11th Cir.1992); LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988); 28 U.S.C. § 636(b)(1)(B). . Johnson has raised additional issues on appeal that he did not present to the district court. Because these supplemental issues are not purely questions of law, the consideration of which would result in the miscarriage of justice, we decline to address them. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1563 (11th Cir.1990). . Other circuits have concluded that Houston does not assist a pro se prisoner who delivers his court document for mailing to prison authorities after the statutory deadline has expired. See Stajic v. I.N.S., 961 F.2d 403, 405 (2d Cir.1992) (per curiam) (declining to extend Houston to allow a pro se prisoner to file a petition after the statutory deadline in a deportation proceeding); Smith v. Evans, 853 F.2d 155, 162 (3d Cir.1988) (finding Houston unavailable to make a pro se federal prisoner’s motion under Federal Rule of Civil Procedure 59(e) timely, when ”[i]t is clear that when [the pro se prisoner] put his motion in the envelope (even before he gave it to prison authorities to mail) his motion was untimely.\"); see also United States v. Locke, 471 U.S. 84, 101, 105 S.Ct. 1785, 1796, 85 L.Ed.2d 64 (1985) (\"Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.”). . In a pro se prisoner's section 1983 action, the Second Circuit found that the prison mail log showing when the inmate received correspondence from the district court was suggestive of prison officials' confiscating some of the prisoner’s legal papers and indicated when his complaint was received for mailing to district court. Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). . See, e.g., Vaughan v: Ricketts, 950 F.2d 1464, 1466-68 (9th Cir.1991) (While prisoner’s counsel had not withdrawn formally in" }, { "docid": "23400705", "title": "", "text": "of prison authorities, as “[t]he prison will be the only party with access to at least some of the evidence needed to resolve such questions ... and evidence on any of these issues will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay.” Id. at 276, 108 S.Ct. at 2386. Pro se prisoners experience similar difficulties in filing appeals from non-habeas civil suits. In fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials. The only circuit that has faced this question has assumed, without analysis, that Houston applies to non-habeas civil suits. See Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988); cf. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (citing Houston, court deemed objections to magistrate’s report in section 1983 case timely since timely mailed from prison), cert. denied, — U.S. -, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990). Given the broad language of Houston and its important policy concerns, we conclude that Houston applies to notices of appeal filed in non-habeas civil cases by incarcerated prisoners acting pro se. b. Retroactivity This circuit has not directly addressed whether Houston should be applied retroactively. In Miller v. Sumner, 872 F.2d at 287, where the untimely filing occurred prior to the decision in Houston, the panel apparently assumed that Houston would apply retroactively. Specifically, the panel stated that if the district court determined the appellant had timely delivered his notice of appeal, the district court should issue a statement of probable cause: “Only then will we have jurisdiction over this appeal.” 872 F.2d at 289. We now confirm that Houston will be applied retroactively. “[A] fundamental principle of our jurisprudence is that a court will apply the law as it exists when rendering its decision.” DeGurules v. INS, 833 F.2d 861, 863 (9th Cir.1987); Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d" }, { "docid": "23216289", "title": "", "text": "be liberally construed and that ‘mere technicalities’ should not stand in the way of consideration of a case on its merits.”). In Smith v. Evans, 853 F.2d 155, 161 (3d Cir.1988), we were faced with an untimely motion by a prisoner to alter or amend the district court’s judgment pursuant to Fed.R.Civ.Pro. 59(e), which led to an untimely notice of appeal. We were potentially confronted with a similar question of how to accommodate strict jurisdictional appellate time limitations with basic fairness to imprisoned pro se litigants. Smith, 853 F.2d at 162. We noted that Houston v. Lack demonstrated the Supreme Court’s particular solicitousness of the need to preserve the rights of pro se prisoners to appeal where the impediment to timely filing arises from the process of transmitting mail from the prison over which the prisoner has no control. We further noted that the facts of Smith especially warranted application of the Houston principle since the time limit for filing a motion to amend, like the time limit involved in the case at bar, is shorter than the time limit at issue in Houston. Id. However, we did not have to decide the question whether to exclude delay caused by the prison because Smith’s motion was out of time before he even gave the motion to prison officials to mail. Here we must reach the question. The teaching of Houston is that prison delay beyond the litigant’s control cannot fairly be used in computing time for appeal. We perceive no difference between delay in transmitting the prisoner’s papers to the court and transmitting the court’s final judgment to him so that he may prepare his appeal. In keeping with the teachings of Houston and Smith, and our desire to avoid creating technical pitfalls to hearing appeals on the merits, we hold that in computing the timeliness of pro se prisoners’ appeals, any prison delay in transmitting to the prisoner notice of the district court’s final order or judgment shall be excluded from the computation of an appellant’s time for taking an appeal. Our holding does not disturb the basic principle" }, { "docid": "6413498", "title": "", "text": "to prison authorities for forwarding to the district court. In so holding, the Court barred application of the general rule that, in determining the timeliness of appeal under Fed.R.App.P. 4(a)(1), “filing” occurs only upon receipt by the district court. The Court noted that, for the ordinary civil litigant, receipt rather than formal “filing” determines timeliness because the litigant lacks control over the notice once it is in the district court’s possession. Houston, 487 U.S. at 273, 108 S.Ct. at 2383. The pro se prisoner, with neither the freedom to deliver the notice himself, nor counsel to deliver it for him, surrenders control even earlier in the process than the ordinary litigant. Id. at 271, 273-74, 108 S.Ct. at 2382, 2383-84. Absent the rule in Houston, the pro se prisoner’s right to appeal would depend entirely upon the diligence both of the prison authorities in promptly mailing the notice and of the postal service in timely delivering it. See Id. at 275-76, 108 S.Ct. at 2384-85. Thus, the rule in Houston relies on policy concerns surrounding the pro se prisoner’s lack of control over delays between prison authorities’ receipt of the notice and its formal “filing” by the district court. Recognizing that these policy concerns apply to other procedural deadlines, courts in other circuits have held that delivery to prison authorities constitutes “filing” under rules in addition to Fed.R.App.P. 4(a)(1) governing notices of appeal. See Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (Houston' “applies to other filings, including a Rule 59(e) motion”); Lewis v. Richmond City Police Dept., 947 F.2d 733 (4th Cir.1991) (filing of complaint for purposes of statute of limitations); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (filing of plaintiff’s objections to magistrate’s report and recommendation), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (Rule 59(e) motion for reconsideration); Moskovits v. Drug Enforcement Agency, 774 F.Supp. 649, 653 (D.D.C.1991) (response to agency regarding claim to currency under forfeiture). In this circuit, we have not yet held that Houston applies to procedural deadlines" }, { "docid": "23034006", "title": "", "text": "The Fourth Circuit compared the wording of Federal Rules of Appellate Procedure 3(a) and 4(a)(1), implicated in Houston, with that of Federal Rule of Civil Procedure 5(e), and found them to be so similar that an identical interpretation was warranted. As applied to pro se prisoners, the Supreme Court construed “filing” in the Appellate Rules to mean “directed to” the clerk of the district court, which occurred upon delivery to prison officials. Lewis, 947 F.2d at 736. Accordingly, the Fourth Circuit determined that the subject complaint was filed timely because it was delivered to prison officials within the two-year statute of limitations period. We approve and- adopt the Fourth Circuit’s reasoning in Lewis, which is directly analogous to Garvey’s case. Regarding Johnson’s case, we find that the same considerations of equal access to the courts involved in a state pro se prisoner’s filing a section 1983 action apply to a federal pro se prisoner’s filing a claim under the Federal Tort Claims Act. See Hostler, 912 F.2d at 1161 (The “broad language of Houston and its important policy concerns” indicate that it should be applied in contexts other than habeas cases when prisoners act pro se.). Further, the Court has emphasized' “that the requirements of the rules of procedure should be liberally construed and that ‘mere technicalities’ should not stand in the way of consideration of a case on its merits.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 316, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988). In keeping with the Court’s clear direction in Houston to provide pro se prisoners equal access to the courts with other litigants, we do not view the distinction between a federal pro se prisoner filing a federal tort claim to be “meaningfully distinguishable” from a state pro se prisoner filing a section 1983 action. Grana, 864 F.2d at 315. “Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel.” Oritz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). Therefore, we now" }, { "docid": "6413499", "title": "", "text": "the pro se prisoner’s lack of control over delays between prison authorities’ receipt of the notice and its formal “filing” by the district court. Recognizing that these policy concerns apply to other procedural deadlines, courts in other circuits have held that delivery to prison authorities constitutes “filing” under rules in addition to Fed.R.App.P. 4(a)(1) governing notices of appeal. See Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (Houston' “applies to other filings, including a Rule 59(e) motion”); Lewis v. Richmond City Police Dept., 947 F.2d 733 (4th Cir.1991) (filing of complaint for purposes of statute of limitations); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (filing of plaintiff’s objections to magistrate’s report and recommendation), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (Rule 59(e) motion for reconsideration); Moskovits v. Drug Enforcement Agency, 774 F.Supp. 649, 653 (D.D.C.1991) (response to agency regarding claim to currency under forfeiture). In this circuit, we have not yet held that Houston applies to procedural deadlines other than for civil notices of appeal. Nonetheless, our decisions have evinced a pragmatic approach in applying the deci sion’s rule in circumstances other than those presented in Houston itself — a pro se prisoner appealing the denial of a writ of habeas corpus. In our subsequent cases, our main concern has been whether the circumstances involve the same lack of control over timeliness described in Houston. For example, focusing on “the broad language of Houston and its important policy concerns,” and noting that “[p]ro se prisoners experience similar difficulties in filing appeals from non-habeas civil suits,” we have held that the rule in Houston cannot be confined to habeas petitioners. See Hostler v. Groves, 912 F.2d 1158, 1160-61 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991). We have also concluded that a prisoner whose counsel has not been technically discharged may nonetheless invoke the rule in Houston if he can show that his counsel has abandoned him; the decision rested on our conclusion that the inmate abandoned by" }, { "docid": "23034017", "title": "", "text": "prisoner's objections to a magistrate, judge’s report and recommendation, which the district court had found to be untimely.), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Ortiz, 867 F.2d at 148-49 (Houston was used to remedy the late filing of a complaint in a section 1983 case because the initial, timely filed complaint was returned to the prg se prisoner for corrections.); Grana, 864 F.2d at 315-16 (Applying Houston, any delay by prison officials in transmitting a notice of a judgment or final order to a federal pro se prisoner should be excluded from the computation time for taking an appeal.); Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988) (per curiam) (Even without a certificate of service, the signature of a pro se state prisoner on a timely notice of appeal complies with Houston), Thompson v. Montgomery, 853 F.2d 287, 288 (5th Cir.1988) (per curiam) (Based on Houston, a civil rights action was remanded to district court for determination of whether any documentation supported the pro se prisoner’s assertion that he timely placed his notice of appeal in the prison mailbox.); Smith, 853 F.2d at 161-62 (Houston is applicable to a motion to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e) for a pro se state prisoner in a section 1983 action.). . Federal Rule of Appellate Procedure 3(a) states that \"An appeal ... shall be taken by filing a notice of appeal with the clerk of the district court,\" and Federal Rule of Appellate Procedure 4(a)(1) says that a notice of appeal \"shall be filed with the clerk of the district court.” Federal Rule of Civil Procedure 5(e) states that \"[t]he filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court.” . Houston is restricted to federal court filings; a notice of appeal given to prison authorities for delivery to a person or entity other than a federal court is not included in \"Houston's mailbox rule.” Wilder v. Chairman of Cent. Classification Bd., 926 F.2d 367," }, { "docid": "14030809", "title": "", "text": "to appeal runs from entry of the order disposing of the motion for rehearing. See Rule 6(b)(2)(A)(i), Federal Rules of Appellate Procedure. Rashid’s motion for rehearing was required to be filed within ten days after entry of the judgment of the District Court; the tenth day was Monday, June 15, 1998. The District Court Clerk’s Office did not receive his motion until June 17, 1998. Rashid, however, is a federal inmate entitled to the benefits of the teachings set forth in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), in which the Court recognized that prisoners proceeding pro se confront a situation unique from other litigants because they are unable to file personally in the courthouse and must depend on prison officials for delivery. The Court crafted a rule that deems a pro se prisoner’s notice of appeal filed at the moment it is delivered to prison authorities for mailing to the district court. See id. at 270, 108 S.Ct. 2379. We have previously extended this rule in two ways relevant to this appeal. First, we have held that Houston applies to notices of appeal filed in bankruptcy appeals. See In re Flanagan, 999 F.2d 753, 758 (3d Cir.1993). We reasoned that “[a] pro se prisoner seeking to appeal a bankruptcy court order faces precisely the same problems as a prisoner who wishes to file a pro se appeal from an order dismissing a habe-as petition.” Id. Second, we have extended Houston to motions to alter or amend judgment pursuant to Rule 59(e), Federal Rules of Civil Procedure. See Smith v. Evans, 853 F.2d 155, 161 (3d Cir.1988). By analogy we believe that the teachings of these cases should apply to Rashid’s Motion for Rehearing pursuant to Bankruptcy Rule 8015, “the bankruptcy counterpart” to Rule 59(e), Federal Rules of Civil Procedure. See Matter of Grabill Corp., 983 F.2d 773, 775 (7th Cir.1993). Rashid seeks the benefit of the prisoner mailbox rule, and he has filed a declaration pursuant to Rule 4(c)(1) that permits a prisoner to demonstrate timely filing by submitting a declaration “in compliance" }, { "docid": "23034003", "title": "", "text": "appeal, the Court previously concluded that “there is no reason on the basis of what this record discloses to doubt that petitioner’s date at the top of the letter was an accurate one and that subsequent delays were not chargeable to him.” Fallen v. United States, 378 U.S. 139; 143-44, 84 S.Ct. 1689, 1692, 12 L.Ed.2d 760 (1964). Fallen recognizes that, once a pro se inmate has deposited his document to be filed in the prison mailbox, “the jailer is in effect the clerk of the District Court.” 378 U.S. at 144, 84 S.Ct. at 1692-93 (Stewart, J., concurring). Accordingly, Houston places the burden of proof for the pro se prisoner’s date of delivering his document to be filed in court on the prison authorities, who have the ability to establish the correct date through their logs. United States v. Grana, 864 F.2d 312, 316 (3d Cir.1989). Houston and Fallen demonstrate that the Court will regard the distinct filing disabilities of state or federal pro se prisoners in both civil and criminal cases. In fashioning an equitable resolution to the pro se prisoner’s filing dilemma, the Court was mindful that “the Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances.” Fallen, 378 U.S. at 142, 84 S.Ct. at 1691. Moreover, Houston does not indicate that it should be limited to habeas corpus appeals. Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 736 (4th Cir.1991) (per curiam); Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991). Using its fairness rationale, other circuits have applied the Houston pro se prisoner filing rule extensively to state and federal inmates and have not limited Houston to its facts. In Lewis, the Fourth Circuit extended Houston to include Federal Rules of Civil Procedure 3 and 5(e) for a pro se state prisoner who filed a 42 U.S.C. § 1983 action. Strikingly similar to Garvey’s case, the Lewis plaintiff-appellant had placed his complaint alleging excessive force at his arrest in the" }, { "docid": "23400704", "title": "", "text": "a pro se prisoner’s notice of appeal from denial of a petition for habeas corpus was deemed filed at the moment the prisoner delivered the notice to prison authorities for forwarding to the district court. See Miller v. Sumner, 872 F.2d 287, 288 (9th Cir.1989), dismissed after remand, 910 F.2d 638, 639 (9th Cir.1990) (“For the exception to filing requirements for pro se prisoner appeals to apply, the notice must be posted through the prison log system.”) a. Application to Non-habeas Cases The opinion in Houston gives no indication that its holding should be limited to habeas cases. The Court noted that a pro se prisoner cannot personally monitor the processing of a notice of appeal and “has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay.” 487 U.S. at 271, 108 S.Ct. at 2382. The Court also noted that a prisoner has no means of proving that a delay may have been the fault of prison authorities, as “[t]he prison will be the only party with access to at least some of the evidence needed to resolve such questions ... and evidence on any of these issues will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay.” Id. at 276, 108 S.Ct. at 2386. Pro se prisoners experience similar difficulties in filing appeals from non-habeas civil suits. In fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials. The only circuit that has faced this question has assumed, without analysis, that Houston applies to non-habeas civil suits. See Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988); cf. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (citing Houston, court deemed objections to magistrate’s report in section 1983 case timely since timely mailed from prison), cert. denied, — U.S. -, 110 S.Ct." }, { "docid": "22884734", "title": "", "text": "Rule 59(e) motion and a Rule 60(b) motion that has a tolling effect under Rule 4(a)(4)(F) need only be “served” within ten days of the entry of judgment. Therefore, September 2 is not necessarily the dispositive date. Furthermore, Rule 5(b) of the Federal Rules of Civil Procedure provides that service by mail is complete upon mailing. Additionally, we note that Duke filed his motion for reconsideration pro se and while incarcerated. In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (Houston), the Supreme Court created what might be called the “prison mailbox rule.” The Supreme Court held as timely filed a pro se notice of appeal from the denial of habeas relief deposited by an inmate with prison authorities for mailing within the thirty-day period fixed by Rule 4(a) of the Federal Rules of Appellate Procedure for the filing of a notice of appeal. Id. at 270, 108 S.Ct. at 2382. The Supreme Court stated that “the Court of Appeals had jurisdiction over petitioner’s appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” Id. at 276, 108 S.Ct. at 2385. The rule in Houston is now restated in the Federal Rules of Appellate Procedure. See Fed.R.App.P. 4(c). Rule 4(e) provides: “If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing.” We believe that the rationale of Houston and the new Rule 4(c) applies with equal force to a motion which, under Rule 4(a)(4), tolls the time for the filing of a notice of appeal. Accord Smith v. Evans, 853 F.2d 155, 162 (3d Cir.1988). Thus, we hold that Duke’s motion for reconsideration should be deemed timely served if it was delivered to prison authorities for mailing within the ten-day time period of Fed.R.Civ.P. 59(e) and Fed R.App.P. 4(a)(4)(F). Upon review of the district court" }, { "docid": "22314644", "title": "", "text": "elapsing during the delivery of an appealable order through a prison’s mail system is excluded from the time for.fíling a motion for reconsideration. Our analysis is guided by our decision in United States v. Grana, 864 F.2d 312 (3d Cir.1989) that “in computing the timeliness of filings which are jurisdictional in nature, any delay by prison officials in transmitting notice of a final order or judgment ... should be excluded from the computation.” Id. at 313. In Grana, a prisoner filed a notice of appeal fifteen days after the expiration of the ten-day limitation specified in Federal Rule of Appellate Procedure 4(b)(1)(A), but alleged that the prison negligently handled his incoming mail, delaying his receipt of the district court’s final order until after the expiration of the appeal period. We viewed incoming mail delays impacting the timeliness of an appeal as analogous to the outgoing delays addressed by the Supreme Court in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston, the Supreme Court applied the “mailbox rule” to prisoner filings and held that a pro se inmate’s notice of appeal is deemed filed at the moment the notice is delivered to prison authorities for forwarding. Under Houston, the prison mail room is essentially “an adjunct of the clerk’s office,” and a juris-dictionally sensitive document is deemed filed on deposit. In re Flanagan, 999 F.2d 753, 759 (3d Cir.1993). A showing of delay on the part of the prison is thus unnecessary. Id. We noted that the prisoner in Grana faced a similar dilemma, given his lack of control over his filing, dependency on the prison authorities for delivery, and the inability to contact the court clerk personally to determine the status of his case. Grana, 864 F.2d at 315. For these reasons, we “perceiv[ed] no difference between delay in transmitting the prisoner’s papers to the court and transmitting the court’s final judgment to him so that he may prepare his appeal.” Id. at 316. Grana thus held that any delay by the prison in transmitting notice of the district court’s order is excluded" }, { "docid": "23400709", "title": "", "text": "F.2d at 289. The court stated that a presumption of timeliness “would encourage prisoners to fraudulently backdate notices of appeal,” whereas a presumption of untimeliness “would encourage prison officials, who often are the appellees in these suits, to delay mailing notices of appeal.” Id. Miller applies here, as we do not know when Hostler submitted his notice of appeal to prison authorities for forwarding to the Clerk. CONCLUSION In light of Hostler’s express instructions to the Clerk and his pro se status, we presume that his notice of appeal was filed as of the date it was lodged in the district court. However, if he did timely submit the notice to prison authorities for forwarding to the district court, then under Houston v. Lack we would consider his appeal to be timely. On remand, the district court shall determine whether Hostler delivered his notice of appeal to prison authorities before July 1, 1988. If so, the appeal shall be permitted. This panel will retain assignment of this case. REVERSED and REMANDED for further proceedings consistent with this opinion. . Hostler sent a copy of this letter to the district court judge. The envelope accompanying the copy also bears the postmark of July 3, 1987. . Motions brought under Fed.R.Civ.P. 52(b) (to amend or make additional findings of fact) or under Fed.R.Civ.P. 59(e) (to alter or amend judgment) do toll the time for filing notices of appeal. Fed.R.App.P. 4(a)(4). Appellant's motion could not have been considered a Rule 52(b) or a Rule 59(e) motion, however, because it was not made within ten days of entry of judgment. See Fed.R.Civ.P. 52(b), 59(e). . In the only other Ninth Circuit case applying Houston, the panel expressly stated that it did not have to reach the issue of whether Houston should be applied retroactively. United States v. Angelone, 894 F.2d 1129, 1131 (9th Cir.1990). . We note that the Fifth Circuit has assumed, without analysis, that Houston applies retroac tively. Smith v. White, 857 F.2d at 1042; cf. Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (applying Houston retroactively to untimely Rule 59(e)" } ]

[ { "docid": "7594131", "title": "", "text": "welfare benefit plan that, although it may be terminated or amended, provides no mechanism or standard for doing so, as required by 29 U.S.C. § 1102(b)(3). Biggers and the other employees have not argued that Wittek Industries’ failure to provide the required procedures affects the company’s ability to amend the plan. And in the circumstances we do not hold that the plan cannot be amended. Cf. Adams v. Avondale Industries, Inc., 905 F.2d 943, 949 (6th Cir.) (concluding that a failure to provide procedures for amendment does not render a plan unam-endable, but may prevent a specific amendment from taking effect if the employees can show detrimental reliance), cert. denied, 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 529 (1990). Yet, we remain in need of a standard for-considering whether the 1989 amendment was effectively adopted when it was drafted and filed but not approved and signed by Viana. As is often the case in considering issues under ERISA, when they are not covered explicitly by the Act, we find guidance in the principles of trust law. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110-11,109 S.Ct. 948, 954-55, 103 L.Ed.2d 80 (1989) (noting in the context of determining the standard of review under ERISA for actions for benefits, “we are guided by principles of trust law”). A situation much like the one now before us occurs in trust law when a settlor reserves the power to modify or revoke a trust, but fails to specify a method for implementing changes. If such power is reserved, then the settlor may exercise the power in any manner that “sufficiently manifests his intention to modify the trust.” Restatement (Second) of Trusts § 331 cmt. c. The settlor must indicate that he has reached a “definitive decision” to alter the trust, and is not just contemplating taking some action in the future. Id. § 330 cmt. i; see also Deibler v. United Food and Commercial Workers, Local Union 23, 973 F.2d 206, 210 (3rd Cir.1992) (relying on trust law principles and stating that a benefit plan may be amended only" } ]

[ { "docid": "5395090", "title": "", "text": "other than that which is considered equitable in nature.” Weber v. Jacobs Mfg. Co., 751 F.Supp. 21, 24 (D.Conn.1990). See also, Resnick v. Resnick, 763 F.Supp. 760, 765 (S.D.N.Y.1991) (“Katsaros ... does not ... support the view that all ERISA claims should be treated as equitable ... That decision is more correctly viewed as endorsing an approach in which the right to a jury trial of an ERISA claim depends upon the type of relief sought.”); and Abbarno v. Carborundum Co., 682 F.Supp. 179, 181 (W.D.N.Y.1988) (“Katsaros ... established] a rule that ERISA actions can be tried to a jury provided the particular ERISA claim at hand is legal in nature— e.g., a claim for non-payment of benefits.”). Moreover, the cases that have found certain ERISA claims to be equitable in nature have relied on case law subsequently repudiated by the Supreme Court. Federal courts prior to Firestone Tire and Rubber Company v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), “routinely employed an ‘arbitrary and capricious’ standard to review actions taken by fiduciaries administering company benefit plans.” Berry v. Ciba-Geigy Corp., supra at 1006. This standard is associated with the equitable law of trusts and “is incompatible with a jury trial scheme.” Id. at 1007. It was only after making this observation that the Fourth Circuit concluded that rights under employee benefit plans are equitable in nature and are not matters for a jury. Id.; See also Calamia v. Spivey, supra at 1237 (“the kind of determination required — whether the pension fund acted arbitrarily and capriciously — was one traditionally performed by judges.”) The Supreme Court in Firestone ruled that the federal courts that had applied the arbitrary and capricious standard of trust law to ERISA actions were applying an incorrect standard. “Actions challenging an employer’s denial of benefits before enactment of ERISA were governed by principles of contract law.” Id., 109 S.Ct. at 955. Contract actions are reviewed de novo. Thus, by using an arbitrary and capricious standard, federal courts were “affordpng] less protection to employees and their beneficiaries than they enjoyed before ERISA" }, { "docid": "22335309", "title": "", "text": "under ERISA. . We note that the standard of review in this case is, as it was in Firestone, concededly one of de novo. We do not address here the situation where the plan or trust instrument reserves to the administrator or fiduciary discretionary powers. In such cases, \"Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.\" Firestone, 489 U.S. at 111, 109 S.Ct. at 954, quoting Restatement (Second) of Trusts § 187 (1959). . In support of this position, the Perry court cited Questech Inc. v. Hartford Accident & Indemnity Co., 713 F.Supp. 956, 962 (E.D.Va.1989), which applied our rulings regarding the scope of evidentiary review in Berry and Votiva v. Seafarers Pension Plan, 858 F.2d 195, 196 (4th Cir.1988), pre-Firestone cases, to the post-Firestone de novo standard of review. Perry, 900 F.2d at 966 n. 3. . In so doing, the court pointed out that the Seventh Circuit in Petrilli v. Drechsel, 910 F.2d 1441, 1445-47 (7th Cir.1990), also distinguished between evidence regarding historical facts and evidence relating to interpretation of the terms of a plan. . As recognized in Berry, remand to the plan administrator is also available to the district court, where necessary. We do not believe, however, that remand in every case of an inadequate record is consistent with the de novo standard of review or in the interests of judicial economy. For example, the district court may exercise its discretion to remand a claim where there are multiple issues and little evidentiary record to review. Application of the de novo standard, as opposed to the arbitrary and capricious standard in Berry, however, does not require such a result. . In Firestone, the Supreme Court chose not to base its enunciation of the standard of review in Firestone on the concern for impartiality and possible conflicts of interests which the Court of Appeals had expressed. 489 U.S. at 115, 109 S.Ct. at 956 (citing 828 F.2d at 143-146)." }, { "docid": "11145758", "title": "", "text": "478, 112 L.Ed.2d 474 (1990). Ingersoll-Rand involved a claim that the claimant had been unlawfully discharged to prevent his attainment of benefits under an ERISA-covered plan. The Court held that plaintiff's state law claims for compensatory and punitive damages, including future lost wages and mental anguish, under various tort and contract theories were preempted be ERISA. The Court rejected the notion that § 502 limits ERISA actions to only those which seek pension benefits and found that the relief requested there was within the power of federal courts to provide. IngersollRand has been interpreted as conclusively establishing that legal remedies, including compensatory and punitive damages and damages for mental anguish, are available under ERISA; therefore, ERISA actions cannot be construed as strictly equitable and the right to a jury trial in such actions exists. See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Midland Steel Products, 771 F.Supp. 860 (N.D.Ohio 1991). Other courts have likewise rejected the notion that ERISA is intrinsically equitable and have found the right to a jury trial exists. See e.g., Vicinanzo v. Brunschwig & Fils, Inc., 739 F.Supp. 882 (S.D.N.Y.1990). Although there are sound reasons to support this viewpoint, this Court is bound by the law as interpreted by the United States Supreme Court and the Court of Appeals for the Sixth Circuit. As applied to this case, the governing law compels the conclusion that plaintiffs are not entitled to a trial by jury on their ERISA claims. Plaintiffs are seeking to recover monetary damages under § 502. The Sixth Circuit Court of Appeals has unequivocally held that a claimant is not entitled to a jury trial in an action brought under § 502 and has refused to carve out exceptions to this broad rule. The Court has also held that compensatory damages to redress a direct injury to a participant under § 502(a)(3) are equitable in nature. These holdings are consistent with the Supreme Court’s observations that ERISA’s fiduciary standards are derived from the law of trusts and that trust law remedies, including monetary damages, are equitable in nature. Firestone" }, { "docid": "20337037", "title": "", "text": "105 S.Ct. 565, 83 L.Ed.2d 506 (1984); In re Vor-pahl, 695 F.2d 318, 321-22 (8th Cir.1982); Calamia v. Spivey, 632 F.2d 1235, 1238 (5th Cir.1980); Wardle v. Central States Pension Fund, 627 F.2d 820, 829-30 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). Nonetheless, some district courts have allowed jury trials. See Algie v. RCA Global Communications, 891 F.Supp. 875 (S.D.N.Y.1994); Steeples v. Time Ins. Co., 139 F.R.D. 688, 693-94 (N.D.Okl.1991); Blue Cross & Blue Shield of Alabama v. Lewis, 753 F.Supp. 345 (N.D.Ala.1990); Rhodes v. Piggly Wiggly Alabama Distrib. Co., 741 F.Supp. 1542 (N.D.Ala.1990); Vicinanzo v. Brunschwig & Fils, Inc., 739 F.Supp. 882 (S.D.N.Y.1990). Many of the courts denying jury trials reasoned that such trials were incompatible with the application of the arbitrary and capricious standard of review, see, e.g.,, Wardle, 627 F.2d at 830, a consideration which no longer applies now that denial of benefits is subject to de novo review under Firestone. Against this weight of authority, Ms. Zimmerman offers two arguments. First, she contends that because Ingersoll-Rand authorizes compensatory damages, the right to a jury trial follows. Since we have determined in Part IV supra that Ms. Zimmerman cannot recover extracontractual damages, this argument is unavailing. See Spinelli, 12 F.3d at 857-58. In her appellate Reply brief, Ms. Zimmerman also argues, relying upon the Supreme Court’s decision in Granfinanciera S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), that Congress cannot deny her rights to a jury trial for the determination of her private cause of action, presumably here her action for breach of contract under Kansas law as preempted by ERISA. See id. at 49-55, 109 S.Ct. at 2794-97 (“Congress may devise novel causes of action.... But it lacks the power to strip parties contesting matters of private right of their constitutional right to a trial by jury.... [T]o hold otherwise would be to permit Congress to eviscerate the Seventh Amendment’s guarantee-”); see also Vicinanzo, 739 F.Supp. at 889-90 (“This recognition of the true force of the Seventh Amendment suggests doctrinal change affecting a host" }, { "docid": "980536", "title": "", "text": "trustees under ERISA may overturn the decision only if it is found to be arbitrary, capricious, made in bad faith, or in derogation of law. The District of Columbia Circuit follows this standard. Block v. Pitney Bowes Inc., 705 F.Supp. 20, 22 (D.D.C.1989) (citations omitted). Unless the above-quoted law of the circuit was changed by the Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), this panel, following established principles of stare decisis, should not take it upon itself to alter it. Although the courts of appeal that have considered the question are not in agreement concerning whether Firestone effected a change in the standard of review, I agree with those courts which hold that it has. See Jones v. Laborers Health & Welfare Trust Fund, 906 F.2d 480, 481 (9th Cir.1990); Batchelor v. Int’l Bhd. of Elec. Workers Local 861 Pension & Retirement Fund, 877 F.2d 441, 442-43 (5th Cir.1989); Boyd v. Trustees of the United Mine Workers Health & Retirement Funds, 873 F.2d 57, 59 (4th Cir.1989). The principal issue in the instant case is the same as was before the Supreme Court in Firestone, viz., “plan interpretation”. 489 U.S. at 108, 109 S.Ct. at 953. Was the administrators’ denial of benefits to Block based upon a correct interpretation of the term “total disability” as defined in the plan? The Firestone Court said that “ERISA abounds with the language and terminology of trust law”, and that “[i]n determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law.” Id. at 110-11, 109 S.Ct. at 953-54. It then quoted section 187 of the Restatement (Second) of Trusts, which states: “Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.” Id. at 111, 109 S.Ct. at 954. A fair reading of the Court’s discussion that followed demonstrates that it adopted the American Law Institute’s" }, { "docid": "886364", "title": "", "text": "the Court, or were decided based on different situations than one constituting a legal claim. Berry analogised the claim for benefits as a breach of fiduciary duty. As the District of Columbia court stated: “The Supreme Court views [some] ERISA claims as analogous to contract actions pri- or to ERISA. Contract actions are legal in nature. Furthermore, they are generally fact-intensive disputes. In other words, they are quintessential jury issues. If a right to a jury existed prior to the passage of ERISA, then to hold that no such right exists under ERISA would ‘afford less protection’ to employee rights than they had before the Act was passed — a result the Supreme Court rejected in Firestone.” McDonald, 774 F.Supp. at 34, quoting phrase from Firestone. The McDonald court also cited the Ingersoll opinion as additional compelling reason to interpret certain ERISA actions as legal, not equitable. Other courts have reached similar decisions post-Firestone. The Fourth Circuit has also analogised some ERISA actions to contract actions. The court, two years after Berry, specifically held § 502 claims to be analogous to contract actions. Dameron v. Sinai Hospital of Baltimore, Inc., 815 F.2d 975 (4th Cir.1987). The court also cited Berry for the proposition that ERISA actions are equitable and do not afford a jury trial. Yet “ ‘[T]he Seventh Amendment ... applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century____’ When a statutory right is grounded on a traditional legal cause of action and traditional legal relief is available under the statute, the Seventh Amendment is implicated.” McDonald, 774 F.Supp. at 35, quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (1989). Prior to ERISA, breach of contract actions, with damages as the remedy, were legal actions requiring a jury. Accordingly, this court holds that such actions carry an implied jury right after the passage of ERISA. The Fourth Circuit has addressed the question of jury trials under ERISA after Firestone. In Biggers v. Wittek" }, { "docid": "12468438", "title": "", "text": "BY JURY Plaintiff has moved the Court to order a jury trial in this action. Defendant opposes this motion, and has cited cases holding that it is error to submit an action arising under ERISA to a jury. Plaintiff acknowledges that the weight of authority prohibits a jury trial. Plaintiff argues, however, that the decision in Firestone and its change in the standard of review from arbitrary and capricious to de novo changes the analysis of the issue and calls into question whether cases decided before Firestone remain good law. In support of its decision, plaintiff cites cases decided by state courts in North Carolina and New York that have permitted jury trials in ERISA actions. In Berry v. Ciba-Geigy Corp., 761 F.2d 1003 (4th Cir.1985), the United States Court of Appeals for the Fourth Circuit joined several sister Courts of Appeals in holding that it was inappropriate to submit to a jury a question arising under ERISA. As plaintiff correctly points out, one reason given by the Court in support of its decision was the then-prevailing arbitrary and capricious standard and the difficulty jurors would have in understanding and applying such a standard. Berry, 761 F.2d at 1006-07. And, if this had been the only reason given by the Court, the validity of its decision in the light of the Firestone decision might be called into question. However, the Court in Berry also cited the common law of trusts as support for its decision, stating that “[cjourts addressing this issue have almost uniformly held that under the common law of trusts proceedings to determine rights under employee benefit plans are equitable in nature, and thus a matter for a judge, not a jury.” Id. at 1007. Thus, the Court of Appeals rested its decision not merely on the arbitrary and capricious standard, but also on the common law of trusts and the finding that actions under ERISA are equitable in nature. In light of this, the Court is of the opinion that Berry remains good law and is binding precedent in this Circuit, even in light of the decision" }, { "docid": "886362", "title": "", "text": "relying on LeFebre, reversed an ERISA jury trial. The trial judge had charged the jury to apply an arbitrary and capricious standard; he had also allowed the jury to consider evidence outside the Administrator’s record, thus making the review of his decision a de novo review. The Fourth Circuit said that an arbitrary and capricious standard should not be submitted to a jury, and that the de novo review was incorrect. The court also said that no jury trial rights obtain in equitable matters such as trust law. In 1989, the Supreme Court impliedly overruled both Fourth Circuit cases. In Firestone, the Court, limiting its consideration to the standard of review for § 502 actions, held that the proper standard of review is de novo, (which is a legal standard). It characterized § 502 claims as analogous to contract actions. Therefore, it can no longer be the law of this Circuit that § 502 claims are equitable because the standard of review is arbitrary and capricious. In a later case, Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), the Supreme Court approved the award of compensatory and punitive damages, under § 502. The Supreme Court has thus recast some ERISA claims as legal, without expressly so holding. Despite trust law language in ERISA and the Supreme Court cases, traditional trust law does not afford de novo review, compensatory damages, or punitive damages. The Supreme Court is following its analogy of contract law actions through to afford legal remedies. The logical conclusion is that, despite being couched within a statutory scheme which mirrors trust law, some ERISA claims and remedies are legal ones and thus should be afforded a jury trial. Other district courts have reached the same conclusion. In McDonald v. Artcraft Elec. Supply Co., 774 F.Supp. 29 (D.D.C. 1991), the court allowed a jury trial of a claim for denial of benefits, with one of the bases being § 502. In so doing, it referred to Berry more than once as an example of pre-Firestone law whose reasoning and validity were overruled by" }, { "docid": "20337036", "title": "", "text": "cannot recover punitive damages and compensatory damages for emotional distress. V. Ms. Zimmerman also argues that the district court erred when it denied her a jury trial. We review this question of law de novo. As the district court noted, ERISA does not specify whether cases arising under section 502 or section 510 are to be tried by a jury. Neither the Supreme Court nor this circuit has decided whether an ERISA plaintiff is entitled to a trial by jury, but at least eight circuits have held there is no such right. See Howard v. Parisian, Inc., 807 F.2d 1560, 1567 (11th Cir.1987); Turner v. CF & I Steel Corp., 770 F.2d 43, 46-47 (3rd Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986); Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1006-07 (4th Cir.1985); Blau v. Del Monte Corp., 748 F.2d 1348, 1357 (9th Cir.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); Katsaros v. Cody, 744 F.2d 270, 278-79 (2nd Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); In re Vor-pahl, 695 F.2d 318, 321-22 (8th Cir.1982); Calamia v. Spivey, 632 F.2d 1235, 1238 (5th Cir.1980); Wardle v. Central States Pension Fund, 627 F.2d 820, 829-30 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). Nonetheless, some district courts have allowed jury trials. See Algie v. RCA Global Communications, 891 F.Supp. 875 (S.D.N.Y.1994); Steeples v. Time Ins. Co., 139 F.R.D. 688, 693-94 (N.D.Okl.1991); Blue Cross & Blue Shield of Alabama v. Lewis, 753 F.Supp. 345 (N.D.Ala.1990); Rhodes v. Piggly Wiggly Alabama Distrib. Co., 741 F.Supp. 1542 (N.D.Ala.1990); Vicinanzo v. Brunschwig & Fils, Inc., 739 F.Supp. 882 (S.D.N.Y.1990). Many of the courts denying jury trials reasoned that such trials were incompatible with the application of the arbitrary and capricious standard of review, see, e.g.,, Wardle, 627 F.2d at 830, a consideration which no longer applies now that denial of benefits is subject to de novo review under Firestone. Against this weight of authority, Ms. Zimmerman offers two arguments. First, she contends that" }, { "docid": "22335275", "title": "", "text": "directed their conclusions. Gleaning guiding principles from both Firestone and the other circuits which have addressed this issue, we will then formulate a limited discretionary scope of review which we believe is most consistent with the multiple purposes of ERISA. In adopting the de novo standard of review, the Supreme Court emphasized that the de novo standard is used under trust law, and that ERISA is replete with the language and terminology of trust law. Firestone, 489 U.S. at 110-12, 109 S.Ct. at 954-55. The court also found the de novo standard most consistent with the judicial treatment of benefit plans prior to ERISA, which was governed by contract law. Id. at 112, 109 S.Ct. at 955. The Court stressed ERISA’s purposes of “ ‘promote[ing] the interests of employees and their beneficiaries in employee benefit plans’ ” and “ ‘protecting] contractually defined benefits.’ ” Id. at 113, 109 S.Ct. at 955 (quoting, respectively, Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983), and Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085, 3093, 87 L.Ed.2d 96 (1985)). The Supreme Court specifically rejected arguments opposing the de novo standard of review on the ground that it would result in much higher administrative and litigation costs, stating that the “threat of increased litigation is not sufficient to outweigh the reasons for a de novo standard.” Id. 489 U.S. at 115, 109 S.Ct. at 956. The Court ultimately concluded that “the de novo standard of review applies regardless of whether the plan at issue is funded or unfunded and regardless of whether the administrator or fiduciary is operating under a possible or actual conflict of interest.” Id. In Berry v. Ciba-Geigy Corp., we were presented with the exact issue presented here, the proper scope of review in an ERISA case, but we addressed the issue under the arbitrary and capricious standard of review. 761 F.2d at 1006. Applying that standard of review, we held that the trial court improperly admitted evidence which was not before the plan administrator. Id. at" }, { "docid": "8339330", "title": "", "text": "his service in the taxicab industry which forfeited his prior service credit. This represents a pure issue of fact and is the sort of question which is particularly appropriate for resolution by a trial jury. Paladino, 588 F.Supp. at 39. Similarly, although the trier of fact in the present case will be required to determine whether the Committee acted arbitrarily and capriciously in denying the plaintiffs severance benefits, this determination will depend heavily upon issues of fact, such as motivation and state of mind. These types of issues are best resolved by a jury. In McDonald, the district court distinguished circuit court cases such as Calamia and Berry holding that certain ERISA claims are equitable in nature, by explaining that those cases “relied on case law subsequently repudiated by the Supreme Court” in Firestone. McDonald, 774 F.Supp. at 34. McDonald notes that, prior to Firestone, federal courts typically applied the “arbitrary and capricious” standard to review the actions of plan administrators: a standard that is associated with the law of trusts. Id. However, McDonald further explains that in Firestone the Supreme Court held that, under ERISA, the administrator’s actions should ordinarily be subject to de novo review, so as to comport with one of the objectives of the statute: “to promote the interests of employees and their beneficiaries in employee benefits plans.” Firestone, 489 U.S. at 113, 109 S.Ct. at 955 (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1982)). The McDonald court wrote: Firestone marks a significant turning point in the interpretation of ERISA law. The Supreme Court views ERISA claims as analogous to contract actions prior to ERISA. Contract actions are legal in nature. Furthermore, they are generally fact-intensive disputes. In other words, they are quintessential jury issues. If a right to a jury existed prior to the passage of ERISA, then to hold that no such right exists under ERISA would “afford less protection” to employee rights than they had before the Act was passed — a result the Supreme Court squarely rejected in Firestone. McDonald, 774 F.Supp." }, { "docid": "8339329", "title": "", "text": "not make trial by jury unavailable to plaintiffs. In Paladino, the plaintiff sought a declaratory judgment regarding his right to pension benefits due at the time and to become due in the future. The defendant claimed that the plaintiff had not accumulated enough continuous service credits in the industry to be entitled to a pension. The dispute therefore centered around the issue of whether the defendant’s decision to deny the plaintiff benefits was arbitrary and capricious, in light of the terms of the ERISA plan. In recognizing the plaintiffs right to a jury trial, the court wrote: Plaintiff seeks to have the Court review the exercise of fiduciary powers by trustees within the rubric of “arbitrary and capricious,” or according to the standard of whether the decision is supported by substantial evidence. The trier of fact in an ERISA enforcement action is not authorized to substitute his, her or its judgment and discretion for that of the trustees. However, beneath this seemingly “equitable” issue, there lurks a simple question: whether plaintiff had a break in his service in the taxicab industry which forfeited his prior service credit. This represents a pure issue of fact and is the sort of question which is particularly appropriate for resolution by a trial jury. Paladino, 588 F.Supp. at 39. Similarly, although the trier of fact in the present case will be required to determine whether the Committee acted arbitrarily and capriciously in denying the plaintiffs severance benefits, this determination will depend heavily upon issues of fact, such as motivation and state of mind. These types of issues are best resolved by a jury. In McDonald, the district court distinguished circuit court cases such as Calamia and Berry holding that certain ERISA claims are equitable in nature, by explaining that those cases “relied on case law subsequently repudiated by the Supreme Court” in Firestone. McDonald, 774 F.Supp. at 34. McDonald notes that, prior to Firestone, federal courts typically applied the “arbitrary and capricious” standard to review the actions of plan administrators: a standard that is associated with the law of trusts. Id. However, McDonald further" }, { "docid": "11044809", "title": "", "text": "the scope of injunctive relief sought. Plaintiffs are asking for all benefits which they have failed to receive and any other “damages” as a result of GM’s actions. GM’s action occurred in 1988; there has been an alleged loss of benefits for four years. Plaintiffs are also asking this court to compel GM to restore its health care program to its pre-1988 status and to prevent any further changes for decades to come. Because the monetary relief would only cover a period of a few years, while the injunc-tive relief would cover a period' of decades, any monetary award would be incidental to the injunctive relief, thereby depriving plaintiffs of a jury trial right. IT IS SO ORDERED. . Pegg v. General Motors Corp., 793 F.Supp. 284 (D.Kan.1992), notes that prior to Firestone, it was uniformly held that actions under ERISA were equitable, thereby depriving a party of the right to jury trial. . See also McRae v. Seafarers’ Welfare Plan, 920 F.2d 819 (11th Cir.1991); Harsch v. Eisenberg, 956 F.2d 651, 660 (7th Cir.1992); and O'Neil v. Gencorp, Inc., 764 F.Supp. 833, 834 (S.D.N.Y.1991). . See, e.g., International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Midland Steel Products Co., 771 F.Supp. 860 (N.D.Ohio 1991); Vicinanzo v. Brunschwig & Fils, Inc., 739 F.Supp. 882 (S.D.N.Y.1990); McDonald v. Artcraft Electric Supply Co., 774 F.Supp. 29 (D.D.C.1991); and Resnick v. Resnick, 763 F.Supp. 760 (S.D.N.Y. 1991). Despite being located in the Sixth Circuit, the Midland Steel Products court did not mention controlling precedent such as Bair or Daniel; thus, the weight of that court’s decision is limited, . Plaintiffs contend that Senn v. United Dominion Industries, Inc., 951 F.2d 806 (7th Cir.1992), is an appellate decision that upholds the constitutional right to a jury trial in an ERISA action. However, the plaintiffs in Senn sought monetary damages under section 301 of the Labor Management Relations Act (“LMRA”) for breach of contract, and they sought injunctive relief pursuant to sections 404(a)(1), 502(a)(1)(B), and 502(a)(3) of ERISA. The -court stated that the plaintiffs had a constitutional right to a jury" }, { "docid": "5395091", "title": "", "text": "by fiduciaries administering company benefit plans.” Berry v. Ciba-Geigy Corp., supra at 1006. This standard is associated with the equitable law of trusts and “is incompatible with a jury trial scheme.” Id. at 1007. It was only after making this observation that the Fourth Circuit concluded that rights under employee benefit plans are equitable in nature and are not matters for a jury. Id.; See also Calamia v. Spivey, supra at 1237 (“the kind of determination required — whether the pension fund acted arbitrarily and capriciously — was one traditionally performed by judges.”) The Supreme Court in Firestone ruled that the federal courts that had applied the arbitrary and capricious standard of trust law to ERISA actions were applying an incorrect standard. “Actions challenging an employer’s denial of benefits before enactment of ERISA were governed by principles of contract law.” Id., 109 S.Ct. at 955. Contract actions are reviewed de novo. Thus, by using an arbitrary and capricious standard, federal courts were “affordpng] less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted.” Id. at 956. This result is inimical to the intent of ERISA “to promote the interests of employees and their beneficiaries in employee benefits plans.” Id. at 955. The Court went on to hold that a de novo standard of review was appropriate under ERISA. Firestone marks a significant turning point in the interpretation of ERISA law. The Supreme Court views ERISA claims as analogous to contract actions prior to ERISA. Contract actions are legal in nature. Furthermore, they are generally fact-intensive disputes. In other words, they are quintessential jury issues. If a right to a jury existed prior to the passage of ERISA, then to hold that no such right exists under ERISA would “afford less protection” to employee rights than they had before the Act was passed — a result the Supreme Court squarely rejected in Firestone. “[I]t was the intent of Congress that ERISA plan enforcement actions be regarded as legal in nature, and that litigants be entitled to a jury trial.” Vicinanzo v. Brunschwig & Fils, Inc., 739 F.Supp." }, { "docid": "8339319", "title": "", "text": "502(a)(1)(B) of ERISA, just as the Supreme Court in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957), ruled that the courts could establish federal common law for claims “arising under” § 301 of the [LMRA]. See Reiherzer v. Shannon, 581 F.2d 1266, 1271 (7th Cir.1978). The Committee states that § 502(a)(1)(B) claims are to be regarded “in similar fashion” to § 301 actions, not that the identical rules of federal common law are necessarily to apply in both statutory claim§> Id. Wardle has been relied upon by other circuit courts holding that a plaintiff suing un der § 502(a)(1)(B) is not entitled to a jury trial, See, e.g., Calamia v. Spivey, 632 F.2d 1235 (5th Cir.1980). To date, each of the circuit courts that have resolved this issue has held that no jury trial is warranted. See Wardle, 627 F.2d 820; Calamia, 632 F.2d 1235; In re Vorpahl, 695 F.2d 318 (8th Cir.1982); Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir.1984), cert, denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); Berry v. Ciba-Geigy Corp., 761 F.2d 1003 (4th Cir.1985); Turner v. CF & I Steel Corp., 770 F.2d 43 (3d Cir.1985), cert, denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986); Daniel v. Eaton Corp., 839 F.2d 263 (6th Cir.), cert, denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 52 (1988); Blake v. Unionmutual Stock Life Ins. Co., 906 F.2d 1525 (11th Cir.1990). Within the Second Circuit, the district courts have split on the issue. Some courts have held that, at least in some circumstances, § 502(a)(1)(B) impliedly secures the right to a jury trial, and/or that such a right is guaranteed by the Seventh Amendment. See Pollock v. Castrovinci, 476 F.Supp. 606 (S.D.N.Y.1979), aff'd without opinion, 622 F.2d 575 (2d Cir.1980); Paladino v. Taxicab Indus. Pension Fund, 588 F.Supp. 37 (S.D.N.Y.1984); Abbarno v. Carborundum Co., 682 F.Supp. 179 (W.D.N.Y.1988); Vicinanzo v. Brunschwig & Fils, Inc., 739 F.Supp. 882 (S.D.N.Y.1990); Weber v. Jacobs Mfg. Co., 751 F.Supp. 21 (D.Conn.1990); Res-nick v. Resnick," }, { "docid": "886361", "title": "", "text": "afford a jury trial. Berry v. Ciba-Geigy, 761 F.2d 1003 (4th Cir. 1985). Plaintiff argues, and Defendants dispute, that a later Supreme Court case (Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)) opened the door for jury trials for some ERISA actions, and that the Seventh Amendment provides a separate requirement of a jury trial. Post Firestone, the Fourth Circuit has again reversed a decision for a jury trial under ERISA, citing Berry, but without discussion of Firestone’s impact on the question or a Seventh Amendment analysis. For this reason, this .Court considers the availability of jury trials under certain ERISA claims to be open in this circuit. ERISA itself is silent as to jury trials, but actions have traditionally been tried to the bench. In LeFebre v. Westinghouse Elec. Corp., 747 F.2d 197 (4th Cir.1984), the court reversed the trial court because the judge had applied a de novo standard of review rather than an arbitrary and capricious standard. The same year, the Berry court, relying on LeFebre, reversed an ERISA jury trial. The trial judge had charged the jury to apply an arbitrary and capricious standard; he had also allowed the jury to consider evidence outside the Administrator’s record, thus making the review of his decision a de novo review. The Fourth Circuit said that an arbitrary and capricious standard should not be submitted to a jury, and that the de novo review was incorrect. The court also said that no jury trial rights obtain in equitable matters such as trust law. In 1989, the Supreme Court impliedly overruled both Fourth Circuit cases. In Firestone, the Court, limiting its consideration to the standard of review for § 502 actions, held that the proper standard of review is de novo, (which is a legal standard). It characterized § 502 claims as analogous to contract actions. Therefore, it can no longer be the law of this Circuit that § 502 claims are equitable because the standard of review is arbitrary and capricious. In a later case, Ingersoll-Rand Co. v. McClendon, 498" }, { "docid": "8339320", "title": "", "text": "474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); Berry v. Ciba-Geigy Corp., 761 F.2d 1003 (4th Cir.1985); Turner v. CF & I Steel Corp., 770 F.2d 43 (3d Cir.1985), cert, denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986); Daniel v. Eaton Corp., 839 F.2d 263 (6th Cir.), cert, denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 52 (1988); Blake v. Unionmutual Stock Life Ins. Co., 906 F.2d 1525 (11th Cir.1990). Within the Second Circuit, the district courts have split on the issue. Some courts have held that, at least in some circumstances, § 502(a)(1)(B) impliedly secures the right to a jury trial, and/or that such a right is guaranteed by the Seventh Amendment. See Pollock v. Castrovinci, 476 F.Supp. 606 (S.D.N.Y.1979), aff'd without opinion, 622 F.2d 575 (2d Cir.1980); Paladino v. Taxicab Indus. Pension Fund, 588 F.Supp. 37 (S.D.N.Y.1984); Abbarno v. Carborundum Co., 682 F.Supp. 179 (W.D.N.Y.1988); Vicinanzo v. Brunschwig & Fils, Inc., 739 F.Supp. 882 (S.D.N.Y.1990); Weber v. Jacobs Mfg. Co., 751 F.Supp. 21 (D.Conn.1990); Res-nick v. Resnick, 763 F.Supp. 760 (S.D.N.Y. 1991); Smith v. Union Mut. Ins. Co., 1990 WL 209456 (S.D.N.Y.1990); Dawes v. First Unum Life Ins. Co., 1992 WL 350778 (S.D.N.Y.1992). Other sister courts have held that there exists no such right. See Nobile v. Pension Comm, of the Pension Plan for Employees of New Rochelle Hosp., 611 F.Supp. 725 (S.D'N.Y.1985); Gardella v. Mutual Life Ins. Co. of New York, 707 F.Supp. 627 (D.Conn.1988); In re Emhart Corp., 706 F.Supp. 153 (D.Conn.1988); Brock v. Group Legal Adm’rs, Inc., 702 F.Supp. 475 (S.D.N.Y.1989); Clay v. ILC Data Device Corp., 771 F.Supp. 40 (E.D.N.Y.1991). The Second Circuit has not spoken definitively regarding this issue; however, there is authority indicating that the Second Circuit is not prepared to join the various circuits that have recognized no right to a jury trial. In Haeberle v. Board of Trustees of Buffalo Carpenters Health-Care, Dental, Pension and Supplemental Funds, 624 F.2d 1132, 1136 (2d Cir.1980), the Second Circuit expressed “reservation about the practice of taking [an ERISA claim for unpaid benefits] away from a jury, rather" }, { "docid": "886363", "title": "", "text": "U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), the Supreme Court approved the award of compensatory and punitive damages, under § 502. The Supreme Court has thus recast some ERISA claims as legal, without expressly so holding. Despite trust law language in ERISA and the Supreme Court cases, traditional trust law does not afford de novo review, compensatory damages, or punitive damages. The Supreme Court is following its analogy of contract law actions through to afford legal remedies. The logical conclusion is that, despite being couched within a statutory scheme which mirrors trust law, some ERISA claims and remedies are legal ones and thus should be afforded a jury trial. Other district courts have reached the same conclusion. In McDonald v. Artcraft Elec. Supply Co., 774 F.Supp. 29 (D.D.C. 1991), the court allowed a jury trial of a claim for denial of benefits, with one of the bases being § 502. In so doing, it referred to Berry more than once as an example of pre-Firestone law whose reasoning and validity were overruled by the Court, or were decided based on different situations than one constituting a legal claim. Berry analogised the claim for benefits as a breach of fiduciary duty. As the District of Columbia court stated: “The Supreme Court views [some] ERISA claims as analogous to contract actions pri- or to ERISA. Contract actions are legal in nature. Furthermore, they are generally fact-intensive disputes. In other words, they are quintessential jury issues. If a right to a jury existed prior to the passage of ERISA, then to hold that no such right exists under ERISA would ‘afford less protection’ to employee rights than they had before the Act was passed — a result the Supreme Court rejected in Firestone.” McDonald, 774 F.Supp. at 34, quoting phrase from Firestone. The McDonald court also cited the Ingersoll opinion as additional compelling reason to interpret certain ERISA actions as legal, not equitable. Other courts have reached similar decisions post-Firestone. The Fourth Circuit has also analogised some ERISA actions to contract actions. The court, two years after Berry, specifically held §" }, { "docid": "5395092", "title": "", "text": "was enacted.” Id. at 956. This result is inimical to the intent of ERISA “to promote the interests of employees and their beneficiaries in employee benefits plans.” Id. at 955. The Court went on to hold that a de novo standard of review was appropriate under ERISA. Firestone marks a significant turning point in the interpretation of ERISA law. The Supreme Court views ERISA claims as analogous to contract actions prior to ERISA. Contract actions are legal in nature. Furthermore, they are generally fact-intensive disputes. In other words, they are quintessential jury issues. If a right to a jury existed prior to the passage of ERISA, then to hold that no such right exists under ERISA would “afford less protection” to employee rights than they had before the Act was passed — a result the Supreme Court squarely rejected in Firestone. “[I]t was the intent of Congress that ERISA plan enforcement actions be regarded as legal in nature, and that litigants be entitled to a jury trial.” Vicinanzo v. Brunschwig & Fils, Inc., 739 F.Supp. 882, 885 (S.D.N.Y.1990). In fact, the District Court in Vicinanzo commented that it is “[p]erhaps because the right to a jury trial on claims of legal entitlement is so obvious, [that] ERISA makes no express provision for jury trials even on fact-oriented issues arising in purely contractual cases.” Id. (emphasis in the original); see also, Rhodes v. Piggly-Wiggly Alabama Distributing Co., 741 F.Supp. 1542, 1545-46 (N.D.Ala.1990) (The fact that “Congress has always understood that the right to jury trial is supplied by the Seventh Amendment” may explain why Congress did not believe it necessary expressly to provide for a jury trial in the statute and why it has never purported to deny such a right.) Thus, while ERISA contains no explicit reference to jury trials, “ERISA impliedly conferred a jury trial right with respect to factual disputes arising in connection with contracts or trust instruments.” Vicinanzo, supra at 886. Ingersoll-Rand, supra, provides additional support for the conclusion that recent Supreme Court case law suggests a jury trial by right in certain ERISA actions. The plaintiff" }, { "docid": "3986041", "title": "", "text": "S.Ct. 76, 102 L.Ed.2d 52 (1989), and Cook v. Pension Plan for Salaried Employees of Cyclops Corporation, 801 F.2d 865 (6th Cir.1986). Under the prevailing pre-Firestone approach in our circuit, any ambiguity in a plan triggered an administrator’s discretion; the decision of the administrator was reviewed under the “arbitrary or capricious” standard. This approach is reflected in cases such as Daniel and Cook, and it is the approach that was applied by the district court in this case. In Firestone, the Supreme Court unqual-ifiedly rejected this approach. As we have already recognized, the Court has made it abundantly clear that discretion is not the norm, and that, absent a grant of discretion, an administrator’s decision will be reviewed de novo. Firestone, 489 U.S. at 112, 109 S.Ct. at 956. See also Brown v. Ampco-Pittsburgh Corp., 876 F.2d 546, 549-50 (6th Cir.1989). As we explained in Brown, “The purposes of ERISA are to promote and protect the rights of employees and their beneficiaries in employee benefit plans. Absent a clear grant of discretion to the administrator, application of the highly deferential arbitrary and capricious standard of review does not promote these goals.” Id. at 550 (citation omitted). In Firestone, our approach to reviewing the interpretation of plan provisions under ERISA was rejected and our pre-Firestone decisions have been overruled on this issue. Post-Firestone, two principles emerge. First, discretion is the exception, not the rule. Unless the plan grants discretion, the court should review the actions of the administrator de novo. The Court explained that, as ERISA “abounds with the language and terminology of trust law,\" trust principles should govern, where applicable. Firestone, 489 U.S. at 110, 109 S.Ct. at 954. The Court then noted that, “[a]s they do with contractual provisions, courts construe terms in trust agreements without deferring to either party’s interpretation.” 489 U.S. at 112, 109 S.Ct. at 955. Further, the Court reasoned, under the law as it stood prior to ERISA, employees received de novo review, and the Court concluded that it would be anomalous to read ERISA to give plan participants less rights than before. 489 U.S." } ]

[ { "docid": "22628660", "title": "", "text": "fact of the bankruptcy judge which have been affirmed by the district court unless such findings are clearly erroneous. Coen v. Zick, 458 F.2d 326 (9th Cir. 1972). The appellants do not dispute this rule; their argument is that the bankruptcy judge improperly gave conclusive weight to the documents depicting the state court proceedings and refrained from exercising his exclusive jurisdiction to determine the dischargeability of debt as required by section 17(c)(2) of the Bankruptcy Act as amended in 1970. To support this contention appellants point to the bankruptcy judge’s oral order holding the debt dischargeable and his recantation, which appellants insist can only be explained by the bankruptcy judge believing that, under the authority of Coen v. Zick, supra, he was bound by the state court proceedings to find the debt not dis-chargeable. Were we to accept the view that the bankruptcy judge considered himself compelled by the state court documents presented to him to find the debt not dis-chargeable we would agree that the district court’s order would have to be reversed. The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dischargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. This does not mean that the documents which officially enshrine the state court proceedings may not be considered by the bankruptcy judge as establishing the nondischargeability of a debt. What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). See In re Mountjoy, 368 F.Supp. 1087, 1096 (W.D.Mo.1973). Nor do we believe that Coen v. Zick, supra, is inconsistent with our position even though it dealt with a bankruptcy proceeding and a judgment debt originating prior to the 1970" } ]

[ { "docid": "11080421", "title": "", "text": "on March 19, 1981, an execution in the amount of $5,012.63 issued against the Debtor. It is this indebtedness which the Plaintiffs in the case at hand allege is nondischargeable. The Plaintiffs assert that the attorneys’ fees, costs and expenses which they incurred, as a result of the litigation initiated by the Debtor, constitute, as a matter of law, a debt for willful and malicious injury under § 523(a)(6) of the Bankruptcy Code, 11 U.S.C. § 523(a)(6). The Plaintiffs also contend that the doctrine of collateral estoppel applies to preclude a determination by this court of the issue of willful and malicious injury and that, consequently, the Plaintiffs should be granted summary judgment. Plaintiffs rely in part upon In re Gabrielson, 1 B.R. 563 (Bkrtcy.E.D.N.Y. 1979) where the bankruptcy court held that a debt based upon a state court judgment for malicious prosecution constituted a debt for willful and malicious injury under § 17(a)(8) of the Bankruptcy Act. The court gave the state court judgment res judicata effect and thereby found the debt to be nondischargeable. The Supreme Court recently held that, in the context of determining dischargeability under § 17(a)(2), (4) and (8) of the Bankruptcy Act, the doctrine of res judicata does not apply and a bankruptcy court is not required to limit its review to a judgment and record from prior state court proceedings. The Supreme Court reasoned that, where Congress had granted bankruptcy courts exclusive jurisdiction to decide particular issues, res judicata should not prevent those courts from exercising that jurisdiction. Brown v. Felsen, 442 U.S. 127, 138-39, 99 S.Ct. 2205, 2212-13, 60 L.Ed. 767 (1979). Congress has also granted bankruptcy courts exclusive jurisdiction to decide dischargeability questions under § 523(a)(2), (4) and (6) of the Bankruptcy Code. 11 U.S.C. § 523(c). Therefore, the rule set forth in Brown is applicable in the case at hand. In re Eskenazi, 6 B.R. 366 (Bkrtcy., 9th Cir. 1980); Matter of Trewyn, 12 B.R. 543 (Bkrtcy.W.D.Wis.1981). The issue in the present case does not involve the doctrine of res judicata but concerns the related principle of collateral estoppel. Collateral" }, { "docid": "18771146", "title": "", "text": "denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Daley involved a prior bankruptcy court proceeding between a debtor and a creditor in which the initial complaint had alleged twenty-one counts of breach of contract and fraud. The prior proceeding resulted in a stipulated dismissal with prejudice of the fraud claims. The Ninth Circuit held that collateral estoppel did not apply since the bankruptcy court has the exclusive jurisdiction to determine dischargeability, and thus must consider all relevant evidence bearing on the nature of the debt. Daley at 838-39. The decision of Daley relied on another Ninth Circuit case, In re Houtman, 568 F.2d 651 (9th Cir.1978). In Houtman, the Ninth Circuit stated: [t]he 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dis-chargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estop-pel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. Id. at 653 (emphasis added). In 1991, the Supreme Court overruled both Houtman and Daley as to their interpretation on the availability of collateral estoppel in nondischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The Supreme Court in Grogan stated: Our prior cases have suggested, but have not formally held, that the principles of collateral estoppel apply in bankruptcy proceedings under the current Bankruptcy Code.... Virtually every Court of Appeals has concluded that collateral estoppel is applicable in discharge exception pro-ceedings_ We now clarify that collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a). Grogan, 498 U.S. at 284-85 n. 11, 111 S.Ct. at 658 n. 11 (citations omitted) (emphasis added). In applying collateral estoppel, we apply federal law to determine the preclusive effect of a prior federal diversity judg ment. Under the federal standard, to foreclose relitigation of an issue under collateral estoppel, four elements must be met: 1) The issue sought to be precluded must be the same as that involved in the prior action; 2) The" }, { "docid": "1193881", "title": "", "text": "Bankruptcy Code provides “a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Grogan v. Garner, 498 U.S. at 286, 111 S.Ct. at 659. “The federal policies underlying a bankruptcy discharge ... buttress the view that the issues necessary for issue preclusion be addressed with particular caution.” Olson, 170 B.R. at 166. “Indeed, the policy considerations attendant a bankruptcy discharge weigh strongly in favor of nonpreelusion.” Id. The Court determines that even if collateral estoppel technically applies in this situation, the special rules that govern the determination of dischargeability of debts under sections 523(a)(2), (a)(4), (a)(6), and (a)(15) preclude the use of collateral estoppel here. See In re Daley, 776 F.2d 834, 838 (9th Cir.1985), cert. denied Daley v. Frank, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). In Daley the Ninth Circuit Court of Appeals concluded that since the prior Arizona district court action was dismissed with prejudice pursuant to a stipulation between the parties, the fraud claims were not actually litigated and collateral estoppel would not prevent the bankruptcy court from making an independent inquiry under sections 523(a)(2), (a)(4), and (a)(6). Id. The Ninth Circuit further determined that even if collateral estoppel technically applied, the bankruptcy court had exclusive jurisdiction to determine the issue of nondischargeability, which precluded the use of collateral estoppel in the case. Id. The Daley court quoted In re Houtman, 568 F.2d 651, 653-54 (9th Cir.1978): [t]he 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dis-chargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estop-pel in determining the nondischargeability of debts described in section 17(a)(2), (I), and (8) of the Bankruptcy Act [now sections 523(a)(2), (a)(4), and (a)(6) of the Bankruptcy Code], This does not mean that the documents which officially enshrine the state court proceedings may not be considered by the bankruptcy judges" }, { "docid": "14482366", "title": "", "text": "amendments to § 17 of the Bankruptcy Act, noting that one of the chief purposes of the amendment “was to take these § 17 claims away from state courts that seldom deal with the federal bankruptcy laws and to give those claims to the bankruptcy court so that it could develop expertise in handling them.” 442 U.S. at 136, 99 S.Ct. at 2211. Bell also cites In re Houtman, in which the Ninth Circuit announced a similar rule. The court there affirmed a bankruptcy court’s finding of nondischargeability, carefully noting that the bankruptcy court had not held itself bound by a prior state court judgment. The following portions of the decision are apposite here: Were we to accept the view that the bankruptcy judge considered himself compelled by the state court documents presented to him to find the debt not dischargeable we would agree that the district court’s order would have to be reversed. The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dischargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. This does not mean that the documents which officially enshrine the state court proceedings may not be considered by the bankruptcy judge as establishing the nondischargeability of a debt. What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). See In re Mountjoy, 368 F.Supp. 1087, 1096 (W.D.Mo.1973). 568 F.2d 651 at 653-54 (9th Cir.). This court, of course, has no quarrel with the proposition, enunciated in these cases and urged by Bell, that a bankruptcy court faced with a claim of nondischargeability under § 17 and presented with a state court judgment evidencing a debt is not bound" }, { "docid": "14482367", "title": "", "text": "those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. This does not mean that the documents which officially enshrine the state court proceedings may not be considered by the bankruptcy judge as establishing the nondischargeability of a debt. What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). See In re Mountjoy, 368 F.Supp. 1087, 1096 (W.D.Mo.1973). 568 F.2d 651 at 653-54 (9th Cir.). This court, of course, has no quarrel with the proposition, enunciated in these cases and urged by Bell, that a bankruptcy court faced with a claim of nondischargeability under § 17 and presented with a state court judgment evidencing a debt is not bound by the judgment and is not barred by res judicata or collateral estoppel from conducting its own inquiry into the character and, ultimately, the dischargeability of the debt. Like the Ninth Circuit in In re Houtman, this court would be constrained to reverse the bankruptcy court’s decision if the bankruptcy judge had held himself to be bound by the state court judgment. That, however, is not the case. The bankruptcy judge here was presented with state court consent judgments as part of a motion for summary judgment on the claim of nondischargeability (while Bell characterizes the judgments throughout his brief as default judgments, they are all signed by attorneys acting in his behalf). The judgments contained rather detailed recitations of the findings upon which they were based, findings which closely paralleled the language of § 17(a)(4) of the Bankruptcy Act. The bankruptcy judge quite properly considered these judgments as evidence in connection with the motion for summary judgment. Summary judgment practice in bankruptcy court is, under Bankruptcy Rule 757, governed by Rule 56, Fed.R.Civ.P. Under" }, { "docid": "4636662", "title": "", "text": "finding of constructive fraud or fraud implied-in-law as opposed to actual or positive fraud or that the finding of conversion was really based on a technical conversion or gross negligence which would be dischargeable in the bankruptcy proceeding. This Court has examined the various positions taken by the courts regarding issue preclusion in. the context of bankruptcy nondischargeability proceedings. Lower Courts before and after Brown have approached the issue in various ways. A leading pre-Brown case was in In re Houtman, 568 F.2d 651, 3 B.C.D. 1403 (9th Cir.1978). There the Court held that collateral estoppel may not be applied in determining the dischargeability of debts, and the bankruptcy court must consider all relevant evidence, including state court proceedings. The Court stated: The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dischargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. In re Houtman, 568 F.2d 651, 3 B.C.D. at 1404. The Houtman Court added 568 F.2d at 653 n. 2, 3 B.C.D. at 1404, n. 2 as follows: We acknowledge that a grant of exclusive jurisdiction to federal courts does not automatically preclude the application of the doctrine of collateral estoppel. Becher v. Contoure Laboratories, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752 (1928); cf. Clark v. Watchie, 513 F.2d 994 (9th Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). However, we believe that collateral estoppel is inappropriate when “a new determination is warranted ... by factors relating to the allocation of jurisdiction between [the two courts].” Restatement 2d of Judgments § 68.1(c) [TentDraft No. 4, 1977]; cf. Lyons v. Westinghouse Electric Corp., 222 F.2d 184 (2d Cir.), cert. denied, 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737 (1955) (refusal to give collateral estoppel effect to state court finding of no antitrust violation because of need for “an untrammeled jurisdiction of the federal courts.” Id. at 189)." }, { "docid": "10057265", "title": "", "text": "and (8) of the Bankruptcy Act. In re Houtman, 568 F.2d 651 (9th Cir. 1978). Section 17(a)(2) is the predecessor and* substantial twin of § 523(a)(2), the Code section applicable here. Therefore, the Houtman rule still applies and this court is not bound by the Rock County Court’s finding that Trewyn obtained money from Long as a result of Trewyn’s false statement. What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). Houtman at p. 654. The same procedure is applicable under § 17(a)(2)’s successor, § 523(a)(2)(A). Bankruptcy Rule 407 allocates the burden of proof stating, “at the trial on a complaint objecting to a discharge, the plaintiff has the burden of proving the facts essential to his objection.” Although the rule places the burden of proof on the plaintiff, it does not state the standard of proof required. The standard of proof required under § 17(a)(2) was determined by Judge Mabey in In Re Huff, 1 C.B.C.2d 171, 1 B.R. 354, Bankr.L.Rep. (CCH) ¶ 67,269 (D.Utah 1979): Pursuant to this “fresh start” policy, it has been said that exceptions to discharge should be strictly construed in favor of the bankrupt. . .. This rule of construction and the purposes and policies behind the Bankruptcy Act must be taken in conjunction with the obvious purpose of § 17a(2), which is to prevent only the discharge of the dishonest debtor who possessed an “intent to deceive” his creditor. Where dishonesty, or fraud, is at issue, the courts have typically required a higher standard of proof. In view of the scienter requirement and an “intent to deceive” imposed in the § 17a(2) exception, the reasoning behind the traditional requirement of a higher standard of proof for fraud or dishonesty is equally applicable here.... “[T]he purposes of the Act would seem to intend a greater burden on a creditor than" }, { "docid": "16838821", "title": "", "text": "DECISION DENYING SUMMARY JUDGMENT ROBERT D. MARTIN, Bankruptcy Judge. Plaintiff has moved for summary judgment in the action under 11 U.S.C. § 523(a)(2) on the basis of a default judgment entered in an Illinois trial court on claims of fraud. No evidence of the alleged fraud was produced in that Illinois action and none has been made a part of the record on which this motion is to be decided. This court has previously held that neither res judicata nor collateral estoppel is applicable to dischargeability questions, stating in In Re Trewyn, 12 B.R. 543, 545 (Bkrtcy.W.D.Wis.1981): What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). (Citing In Re Houtman, 568 F.2d 651, 654 (9th Cir.1978).) The same procedure is applicable under § 17(a)(2)’s successor, § 523(a)(2)(A). The party objecting to dischargeability has the burden of proving the facts essential to his objection with clear and convincing evidence. In Re DeRosa, 20 B.R. 307, 310-311 (Bkrtcy.S.D.N.Y.1982); In Re Keppel, 14 B.R. 479, 481 (Bkrtcy.E.D.Pa.1981); Trewyn, supra 12 B.R. at 546. The evidence submitted must prove all elements required for nondischargeability under § 523(a)(2) (A), including: 1. The debtor must have obtained the property by means of false representations which he knew were false or which were made with reck less disregard of their truthfulness; 2. The debtor must have an intent to deceive, which may be inferred from the knowing or reckless misrepresentation made to induce another to transfer property to the debtor; and 3. The creditor must actually and reasonably rely on the misrepresentation. Carini v. Matera, 592 F.2d 378 (7th Cir.1979). In Houtman, after examining the complete record and evaluating the facts in light of the elements listed above, the court found that the state court judgment based on fraud established a prima facie case to deny discharge. Whether prior proceedings are sufficient to" }, { "docid": "18734528", "title": "", "text": "dis-chargeability statute, have been narrow in scope and require clear Congressional intent. See Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); Kremer v. Chemical Construction Corp., 456 U.S. 461, 467, 102 S.Ct. 1883, 1890, 72 L.Ed.2d 262 (1982); Marrese, supra. Nonetheless, the Ninth Circuit is of the opinion that the “countervailing statutory policy” referred to in Brown v. Felsen, footnote 10, has been sufficiently stated by Congress to overcome § 1738 in bankruptcy dischargeability cases where either res judicata or collateral estoppel is involved. As stated in Houtman: The 1970 amendments to the Bankruptcy Act imposed upon the bankruptcy courts exclusive jurisdiction to determine dis-chargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondis-chargeability of debts described in § 17(a)(2), (4), and (8) of the Bankruptcy Act. 568 F.2d at 653-54. Section 523(a)(2), (4), and (6) contain the current versions of § 17(a)(2), (4), and (8) of the Bankruptcy Act of 1898. The Ninth Circuit law in this situation is the same under the Bankruptcy Code. See In re Comer, supra; Derish, supra; Matter of Eskenazi, 6 B.R. 366, 368 (BAP 1980). This court is bound by the decisions of the Ninth Circuit, In re Houtman and the cases following it which hold that the doctrine of collateral estoppel does not apply to § 523(a)(6) dischargeability cases. The plaintiffs’ motion to establish by collateral estoppel the nondischargeability of the debts against defendant arising from the California judgment should therefore be denied. B. Nevertheless the prior proceedings may be given some effect. “At most, a prior judgment establishes a prima facie case of nondischargeability which the bankrupt is entitled to refute on the basis of all relevant evidence.” In re Rahm, 641 F.2d at 757. In re Farly, 15 B.R. at 13. Therefore, the plaintiffs may submit the California Superior Court record as evidence and argue that it establishes a prima facie case in the discharge proceedings. As to the other issues, this court reserves ruling on whether sufficiently identical" }, { "docid": "6280070", "title": "", "text": "philosophy of the 1970 amendments to adopt a policy of res judicata which takes these § 17 questions away from bankruptcy courts and forces them back into state courts. See In re McMillan, 579 F.2d 289, 293 (3rd Cir.1978); In re Houtman, 568 F.2d 651, 654 (9th Cir.1978). (footnote omitted) (additional citations omitted). Brown, 442 U.S. at 135-36, 99 S.Ct. at 2212. It is significant that although the majority of the Panel disagrees with Matter of McMillan, the unanimous Supreme Court in Grogan, felt that it was significant in demonstrating the special nature of dischargeability proceedings in bankruptcy courts. The Ninth Circuit has consistently made it clear that because of the special nature of dischargeability proceedings they should be decided by the bankruptcy court. In In re Houtman, 568 F.2d 651 (9th Cir.1978) (also cited by Brown v. Felsen) the Ninth Circuit held that: The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dis-chargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estop-pel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. (footnote omitted). Houtman, 568 F.2d at 653. The court further held: To give collateral estoppel effect to prior state court factual findings would impair the exercise of the expertise of the bankruptcy court. The determination of non-dischargeability should remain an exclusive function of the bankruptcy court unimpeded by the refinements of collateral estoppel by state court judgments. Houtman, 568 F.2d at 654, n. 2. Although the Supreme Court in Grogan v. Garner held that collateral estoppel applied in dischargeability proceedings, Houtman still strongly supports the proposition that dischargeability proceedings are an exception to 28 U.S.C. § 1738. The special federal concern in this case is the same as in Brown v. Felsen. Here the creditor, rather than the debtor, is asking the court to give preclusive effect to a pre-bank-ruptcy judgment, so as to require the debtor to litigate issues in state court before the bankruptcy, in order to preserve the issue" }, { "docid": "19039938", "title": "", "text": "moved for judgment on the record, contending that the issue of nondis-chargeability could be determined solely by reference to the record of the state court proceedings. Following oral argument on this question, the bankruptcy judge denied the Commonwealth’s motion, refusing to “accept the state court default judgment and record as conclusive proof of the issues relevant to dischargeability . . . .” The district court affirmed and this appeal followed. The Commonwealth’s main argument is that through the doctrine of collateral es-toppel the state court default judgment for violations of the Consumer Protection Act provides sufficient basis for a finding of nondischargeability under sections 17(a)(2) and 17(a)(8) of the Bankruptcy Act, 11 U.S.C. §§ 35(a)(2) and (8). It is far from settled, particularly in light of the 1970 Amendments to the Bankruptcy Act which grant the bankruptcy courts exclusive jurisdiction to find dischargeability, that “there is . room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act.” In re Houtman, 568 F.2d 651, 653 (9th Cir. 1978). See Brown v. Felsen, 442 U.S. 127, 139 n.10, 99 S.Ct. 2205, 2213 n.10, 60 L.Ed.2d 767 (June 4, 1979). Several courts and commentators have taken the position that collateral es-toppel has no role to play in the discharge-ability determination. See In re Houtman, supra; In re Pigge, 539 F.2d 369 (4th Cir. 1976); In re Blessing, 442 F.Supp. 68 (S.D. Ind.1977); 1A Collier on Bankruptcy, ¶ 17.-16[6] at 1650.1-1650.2. But see In re Ross, 602 F.2d 604 (3d Cir. 1979). There is the further question here, moreover, whether, even assuming collateral estoppel is generally applicable in section 17 discharge proceedings, the doctrine may be invoked where the prior judgment was entered by default. See In re McMillan, 579 F.2d 289, 292 (3d Cir. 1978) (“[Bjecause the bankrupts did not ‘actually litigate’ the [state court] case, not even facts which were necessary to that [default] judgment can collaterally estop them from litigating the same issues in the bankruptcy case”). See also In re Mallory, Nos." }, { "docid": "10057263", "title": "", "text": "OPINION ROBERT D. MARTIN, Bankruptcy Judge. The Debtor, Francis Trewyn, d/b/a Frank’s Service, entered into a contract with Daniel Long, Jr., to replace Long’s home’s flat roof with a hipped roof for $7,200 in February of 1979. Long made an initial payment of $5,200. Pursuant to that contract, Trewyn removed a portion of Long’s roof. Trewyn never completed the roof replacement. Long commenced an action in Rock County Circuit Court and was awarded a default judgment which stated: 3. The Defendant, Frank Trewyn, made false representations to the Plaintiff with intent to deceive the Plaintiff and that the Defendant, Frank Trewyn, obtained money from the Plaintiff, Long, as a result of such misrepresentations; . . . The court awarded Long $13,813.38 damages plus costs of $375.11. On November 12, 1980, Frank Trewyn filed a chapter 7 bankruptcy petition. Long commenced this action to determine whether Trewyn’s debt to Long is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). Res judicata is inapplicable to dischargeability questions. Justice Blackmun, writing for a unanimous court stated: In sum, we reject respondent’s contention that res judicata applies here and we hold that the bankruptcy court is not confined to a review of the judgment and record in the prior state-court proceedings when considering the dischargeability of respondent’s debt. Brown v. Felson, 442 U.S. 127, 138, 139, 99 S.Ct. 2205 [2212, 2213] 60 L.Ed.2d 767, 776 (1979). [N]o reason exists why the rationale of the Brown decision should not be utilized in dealing with cases under Section 523(a)(2), (4), and (6) of the 1978 Bankruptcy Reform Act. Under both the old and the new Acts, Congress has endowed the bankruptcy courts with exclusive jurisdiction to handle dischargeability questions arising from the factual situation set forth in the cited sections. In Re Eskenazi, 3 C.B.C.2d 20, 6 B.C.D. 1140, 6 B.R. 366, Bankr.L.Rep. (CCH) ¶ 67,663 ([Bkrtcy.] 9th Cir. 1980). The state court judgment may not be given collateral estoppel effect either. [Tjhere is no room for the application of the technical doctrine of collateral estop-pel in determining the nondischargeability of debts described in section 17a(2), (4)," }, { "docid": "4787826", "title": "", "text": "evidence might show, that although the court found fraud the finding of fraud may have really been a finding of constructive fraud or fraud implied-in-law as opposed to actual or constructive fraud or that the finding of conversion was really based on a technical conversion or gross negligence which would be dischargeable in the bankruptcy proceeding. This Court has examined the various positions taken by the courts regarding issue preclusion in the context of bankruptcy nondischargeability proceedings. Lower Courts before and after Brown have approached the issue in various ways. A leading pre-Brown case was in In re Houtman, 568 F.2d 651, 3 B.C.D. 1403 (9th Cir.1978). There the Court held that collateral estoppel may not be applied in determining the dischargeability of debts, and the bankruptcy court must consider all relevant evidence, including state court proceedings. The Court stated: The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dischargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. In re Houtman, 568 F.2d at 653, 3 B.C.D. at 1404. The Houtman Court added at 568 F.2d at 653 N. 2, 3 B.C.D. at 1404, N. 2 as follows: We acknowledge that a grant of exclusive jurisdiction to federal courts does not automatically preclude the application of the doctrine of collateral estoppel. Becher v. Contoure Laboratories, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752 (1928); cf. Clark v. Watchie, 513 F.2d 994 (9th Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). However, we believe that collateral estoppel is inappropriate when “a new determination is warranted ... by factors relating to the allocation of jurisdiction between [the two courts].” Restatement 2d of Judgments § 68.1(c) [Tent. Draft No. 4, 1977]; cf. Lyons v. Westinghouse Electric Corp., 222 F.2d 184 (2d Cir.), cert denied, 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737 (1955) (refusal to give collateral estoppel effect to" }, { "docid": "23259425", "title": "", "text": "does not hold the view expressed by other courts that “there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischarge-ability of debts described in section 17a[(8)] of the Bankruptcy Act.” See In re Houtman, 568 F.2d 651, 653 (9th Cir. 1978). The bankruptcy court may not relitigate the entire case; to do so would do violence to judicial finality, a fundamental tenet of our judicial system. Congress only intended for that policy to give way to the extent necessary to enable the bankruptcy court to make the ultimate determination of dis-chargeability of debts under section 17a(8). Those facts that were actually litigated and necessary to the decision in the court that rendered the judgment, and that are discernible from the record of the case, should not be reopened absent a compelling reason to avoid injustice. Such facts are obviously much easier to discern from the record in a non-jury case where detailed findings of fact have been made. Where a jury has rendered a general verdict, however, ascertaining their factual conclusions may be more difficult. The bankruptcy judge must necessarily tailor his application of collateral estoppel to the circumstances of the case before him, consistent with its purposes and the countervailing intent of Congress. The ultimate finding of whether an injury was willful and malicious, as defined above, is solely the province of the bankruptcy court; those subordinate factual findings that are necessary to that ultimate determination, that have not been actually and necessarily litigated or that are not discernible from the record, must also be determined by it after hearing all relevant evidence that is presented by the parties. V. Collateral Estoppel by Default Judgment An alternative ground exists for reversing and remanding this action. It is far from settled, particularly in light of the 1970 amendments to the Bankruptcy Act which grant the bankruptcy courts exclusive jurisdiction to find dischargeability that “there is . room for the application of the technical doctrine of collateral estop-pel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the" }, { "docid": "11080422", "title": "", "text": "nondischargeable. The Supreme Court recently held that, in the context of determining dischargeability under § 17(a)(2), (4) and (8) of the Bankruptcy Act, the doctrine of res judicata does not apply and a bankruptcy court is not required to limit its review to a judgment and record from prior state court proceedings. The Supreme Court reasoned that, where Congress had granted bankruptcy courts exclusive jurisdiction to decide particular issues, res judicata should not prevent those courts from exercising that jurisdiction. Brown v. Felsen, 442 U.S. 127, 138-39, 99 S.Ct. 2205, 2212-13, 60 L.Ed. 767 (1979). Congress has also granted bankruptcy courts exclusive jurisdiction to decide dischargeability questions under § 523(a)(2), (4) and (6) of the Bankruptcy Code. 11 U.S.C. § 523(c). Therefore, the rule set forth in Brown is applicable in the case at hand. In re Eskenazi, 6 B.R. 366 (Bkrtcy., 9th Cir. 1980); Matter of Trewyn, 12 B.R. 543 (Bkrtcy.W.D.Wis.1981). The issue in the present case does not involve the doctrine of res judicata but concerns the related principle of collateral estoppel. Collateral estoppel prevents the relitigation of an issue only if the following four requirements are satisfied: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment. Matter of McMillan (Appeal of Freedom Finance Co., Inc.), 579 F.2d 289 (3rd Cir. 1978). Collateral estoppel treats as final only those issues that were actually and necessarily decided in a prior suit. Should a state court decide factual issues using standards identical to or more stringent than those used in bankruptcy dischargeability actions, then collateral es-toppel, if held to be applicable, would preclude relitigation of those issues in a bankruptcy court. The Brown Court left unresolved the extent to which collateral estoppel may be applied in dischargeability cases. Brown, supra, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. The Ninth Circuit has taken the position" }, { "docid": "1113672", "title": "", "text": "S.Ct. 2205, 60 L.Ed.2d 767 (1979). The Ninth Circuit Court of Appeals in In re Houtman, supra, examined the issue of whether the Bankruptcy Act’s grant of exclusive jurisdiction to the bankruptcy court precludes a bankrupt from applying collateral estoppel in determining the nondis-chargeability of debts set forth in § 17a(2) of the Bankruptcy Act. Houtman was an appeal from a district court order affirming a bankruptcy judge’s decision that a state court judgment was not dischargeable in bankruptcy. The bankruptcy judge had found that the state court judgment rested on a transaction tainted by fraud, and therefore represented a debt not discharge-able under the language of § 17(a)(2) of the Bankruptcy Act, i. e., a “liability for obtaining money or property by false pretenses or false representations.” The Court of Appeals stated, “The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dischargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. [footnote omitted]. This does not mean that the documents which officially enshrine the state court proceeding may not be considered by the bankruptcy judge as establishing the non-dischargeability of a debt. What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8).” 568 F.2d at 653-54. The Houtman court went on to hold that “[a] state court judgment based on fraud is sufficient to establish a prima facie case that it represents a debt nondischargeable under § 17(a)(2). . [T]he bankrupt is entitled to rebut this prima facie case . . .” 568 F.2d at 655. In the instant action, under the Houtman holding, there was a prima facie case against Herman that, based on the state court judgment, Rolls’ debt" }, { "docid": "4636661", "title": "", "text": "in construing § 523(a)(2)(A) that there must be proof of positive fraud and this involves showing that the acts which constitute fraud involved moral turpitude or an intentional wrong; and fraud implied in law which does not require a showing of bad faith or immorality is insufficient. See, e.g., In re Gilman, 31 B.R. 927, 929 (Bankr.S.D.Fla.1983); In re Slutzky, 22 B.R. 270, 271 (Bankr.E.D.Mich.1982); In re Montbleau, 13 B.R. 47, 48 (Bankr.D.Mass.1981); In re Byrd, 9 B.R. 357, 359 (Bankr.D.C.1981); In re McAdams, 11 B.R. 153, 155 (Bankr.D.Vt.1980). Thus, from the mere fact that a state fraud or conversion case is fully tried on its merits and judgment entered, it does not follow that the Court’s finding of fact in such a case (assuming that Court used the clear and convincing evidence standard discussed above) would collaterally estop or operate as issue preclusion in a subsequent nondischargeability proceeding in the Bankruptcy Court as for example, the evidence might show, that although the court found fraud the finding of fraud may have really been a finding of constructive fraud or fraud implied-in-law as opposed to actual or positive fraud or that the finding of conversion was really based on a technical conversion or gross negligence which would be dischargeable in the bankruptcy proceeding. This Court has examined the various positions taken by the courts regarding issue preclusion in. the context of bankruptcy nondischargeability proceedings. Lower Courts before and after Brown have approached the issue in various ways. A leading pre-Brown case was in In re Houtman, 568 F.2d 651, 3 B.C.D. 1403 (9th Cir.1978). There the Court held that collateral estoppel may not be applied in determining the dischargeability of debts, and the bankruptcy court must consider all relevant evidence, including state court proceedings. The Court stated: The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dischargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy" }, { "docid": "23259426", "title": "", "text": "ascertaining their factual conclusions may be more difficult. The bankruptcy judge must necessarily tailor his application of collateral estoppel to the circumstances of the case before him, consistent with its purposes and the countervailing intent of Congress. The ultimate finding of whether an injury was willful and malicious, as defined above, is solely the province of the bankruptcy court; those subordinate factual findings that are necessary to that ultimate determination, that have not been actually and necessarily litigated or that are not discernible from the record, must also be determined by it after hearing all relevant evidence that is presented by the parties. V. Collateral Estoppel by Default Judgment An alternative ground exists for reversing and remanding this action. It is far from settled, particularly in light of the 1970 amendments to the Bankruptcy Act which grant the bankruptcy courts exclusive jurisdiction to find dischargeability that “there is . room for the application of the technical doctrine of collateral estop-pel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act.” In re Houtman, 568 F.2d 651, 653 (9th Cir. 1978). See Brown v. Felsen, 442 U.S. 127, 139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979). Several courts and commentators have taken the position that collateral estoppel has no role to play in the dischargeability determination. See In re Houtman, supra; In re Pigge, 539 F.2d 369 (4th Cir. 1976); In re Blessing, 442 F.Supp. 68 (S.D.Ind.1977); 1A Collier on Bankruptcy, § 17.16[6] at 1650.1-1650.2. But see In re Ross, 602 F.2d 604 (3d Cir. 1979). There is the further question here, moreover, whether, even assuming collateral estoppel is generally applicable in section 17 discharge proceedings, the doctrine may be invoked where the prior judgment was entered by default. See In re McMillan, 579 F.2d 289, 292 (3d Cir. 1978) (“[Because] the bankrupts did not ‘actually litigate’ the [state court] case, not even facts which were necessary to that [default] judgment can collaterally estop them from relitigating the same issues in the bankruptcy case”). See also In re Mallory, 1 B.R. 201 (N.D.Ga.1979);" }, { "docid": "1193882", "title": "", "text": "court action was dismissed with prejudice pursuant to a stipulation between the parties, the fraud claims were not actually litigated and collateral estoppel would not prevent the bankruptcy court from making an independent inquiry under sections 523(a)(2), (a)(4), and (a)(6). Id. The Ninth Circuit further determined that even if collateral estoppel technically applied, the bankruptcy court had exclusive jurisdiction to determine the issue of nondischargeability, which precluded the use of collateral estoppel in the case. Id. The Daley court quoted In re Houtman, 568 F.2d 651, 653-54 (9th Cir.1978): [t]he 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dis-chargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estop-pel in determining the nondischargeability of debts described in section 17(a)(2), (I), and (8) of the Bankruptcy Act [now sections 523(a)(2), (a)(4), and (a)(6) of the Bankruptcy Code], This does not mean that the documents which officially enshrine the state court proceedings may not be considered by the bankruptcy judges as establishing the nondischargeability of a debt. What is required is that the bank ruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischarge-ability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). Id. at 838-39 (emphasis in original). After the Ninth Circuit decided Daley, the United States Supreme Court stated in Grogan v. Garner, 498 U.S. at 285, 111 S.Ct. at 658 n. 11, that collateral estoppel principles do apply in dischargeability proceedings. However, the Supreme Court did not mandate that a bankruptcy court must invoke collateral estoppel in every situation to which the doctrine may apply. In deciding which standard of proof applies to the exceptions from dischargeability of debts, the Supreme Court opined that if the preponderance of the evidence standard governed in both the prior action and the dischargeability proceeding, then “a bankruptcy court could properly give collateral estoppel effect to those elements" }, { "docid": "10057264", "title": "", "text": "reject respondent’s contention that res judicata applies here and we hold that the bankruptcy court is not confined to a review of the judgment and record in the prior state-court proceedings when considering the dischargeability of respondent’s debt. Brown v. Felson, 442 U.S. 127, 138, 139, 99 S.Ct. 2205 [2212, 2213] 60 L.Ed.2d 767, 776 (1979). [N]o reason exists why the rationale of the Brown decision should not be utilized in dealing with cases under Section 523(a)(2), (4), and (6) of the 1978 Bankruptcy Reform Act. Under both the old and the new Acts, Congress has endowed the bankruptcy courts with exclusive jurisdiction to handle dischargeability questions arising from the factual situation set forth in the cited sections. In Re Eskenazi, 3 C.B.C.2d 20, 6 B.C.D. 1140, 6 B.R. 366, Bankr.L.Rep. (CCH) ¶ 67,663 ([Bkrtcy.] 9th Cir. 1980). The state court judgment may not be given collateral estoppel effect either. [Tjhere is no room for the application of the technical doctrine of collateral estop-pel in determining the nondischargeability of debts described in section 17a(2), (4), and (8) of the Bankruptcy Act. In re Houtman, 568 F.2d 651 (9th Cir. 1978). Section 17(a)(2) is the predecessor and* substantial twin of § 523(a)(2), the Code section applicable here. Therefore, the Houtman rule still applies and this court is not bound by the Rock County Court’s finding that Trewyn obtained money from Long as a result of Trewyn’s false statement. What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). Houtman at p. 654. The same procedure is applicable under § 17(a)(2)’s successor, § 523(a)(2)(A). Bankruptcy Rule 407 allocates the burden of proof stating, “at the trial on a complaint objecting to a discharge, the plaintiff has the burden of proving the facts essential to his objection.” Although the rule places the burden of proof on the plaintiff, it does" } ]

[ { "docid": "12499158", "title": "", "text": "Mers, 19 Ohio St.3d at 105, 483 N.E.2d at 154. In other words, the meaning of the promise depends upon the employer’s expectations of the employee’s subjective interpretation; and the trier of fact must judge the employer’s expectations by an objective standard: it must decide whether the employer’s expectations were reasonable. In elaborating the meaning of the fourth requirement of promissory estoppel, that enforcement of the promise is the only way to avoid injustice, the American Law Institute noted that avoiding injustice “may depend on the reasonableness of the prom-isee’s reliance.” Restatement (Second) of Contracts § 90 comment b (1981). Mers incorporated this teaching by noting that a plaintiff asserting this theory must convince a jury that his acts flowing from the promise were reasonable. Mers, 19 Ohio St.3d at 104, 483 N.E.2d at 155. Case authority in general indicates a requirement that a plaintiff show his reliance was reasonable. Kramer v. Medical Graphics Corp., 710 F.Supp. 1144, 1145 (N.D.Ohio 1989) (“whether Plaintiff reasonably relied upon such assurances is a question of fact”); Crawford v. ITT Consumer Fin. Corp., 653 F.Supp. 1184, 1191 (S.D.Ohio 1986); Kelly v. Georgia-Pac. Corp., 46 Ohio St.3d 134, 140, 545 N.E.2d 1244, 1250 (1989). Normally, the reasonableness of a plaintiff’s reliance is a question of fact, appropriate for adjudication by the jury and inappropriate for summary disposition, Kramer, 710 F.Supp. at 1145; see Kelly, 46 Ohio St.3d at 140, 545 N.E.2d at 1250; Mers, 19 Ohio St.3d at 105, 483 N.E.2d at 155. Nevertheless, the United States Court of Appeals for the Sixth Circuit has held that one type of reliance is unreasonable and does render a plaintiff’s promissory estoppel claim vulnerable to summary judgment. If an employer promises an employee “permanent” employment or employment “until retirement,” any reliance on the promise would be unreasonable because “permanent” employment and employment “until retirement” constitute at-will employment. Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 213 (6th Cir.1989); Meredith v. Rockwell Int’l Corp., 826 F.2d 463, 469 (6th Cir.1987) (quoting Frankart v. Jeep Corp., No. L-85-062, 1985 WL 8222 (Ohio Ct.App. Nov. 8, 1985) (WESTLAW, OH-CS" } ]

[ { "docid": "14788591", "title": "", "text": "There is nothing in the record establishing that Defendant considered the Plaintiffs “uniquely qualified.” Nor is there any evidence that Defendant actively recruited Plaintiffs by luring them away from their jobs in Virginia. Moreover, there is nothing in the record establishing that Plaintiffs’ previous employment had any guarantees of permanency. Therefore, this Court is of the opinion that, based on the undisputed material facts, Defendant is entitled to summary judgment on Plaintiffs’ breach of contract claims. (2) Promissory Estoppel Under certain circumstances, Indiana’s courts have recognized, as an alternative theory of recovery in employment cases, the equitable doctrine of promissory estoppel, which has been described as follows: “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the [promisee] which does induce such action or forbearance is binding if injustice can be avoided only by the enforcement of the promise.” Eby v. York Div., Borg-Warner, 455 N.E. 2d 623, 627 (Ind.Ct.App.1983) (quoting Lyon Metal Prods., Inc. v. Hagerman Constr. Corp., 181 Ind.App. 336, 391 N.E.2d 1152, 1154 (1979)); see Rice v. Rent-A-Center of America, Inc., 664 F.Supp. 423, 427 (N.D.Ind.1987); see also Restatement (Second) of Contracts § 90 (1981). “Promissory estoppel is appropriate in actions such as these when a party takes certain steps to his detriment in order to avail himself of promised employment.” Eby v. York Div., Borg-Warner, 455 N.E.2d at 627; Rice v. Rent-A-Center of America, Inc., 664 F.Supp. at 427. To analyze Plaintiffs’ promissory estoppel arguments, this Court must determine whether Plaintiffs have established the existence of genuinely disputed issues of material fact on four elements — derived from the above formulation of the doctrine of prom issory estoppel and applied to the facts of the present case: (1) whether Zimmer made a definite promise of employment to Plaintiffs which promise alone induced them to move to Indiana in reliance thereon; (2) whether Plaintiffs’ move to Indiana constituted a substantial change; (3) whether Zimmer reasonably expected (or should have expected) that Plaintiffs would take such action; and (4) whether injustice can only be" }, { "docid": "11182417", "title": "", "text": "N.W.2d at 859. The termination language quoted above simply states that reasons will be given to a terminated employee and that an exit interview will be held. These procedures do not constitute a specific pro cedure to be used for employee discipline as the “four notice” procedure in the employee handbook in Osterkamp did. Additionally, the language quoted above that if an employee acts as a “reasonable, law abiding citizen and [does his or her] job well,” the employee will do well at American Colloid is “too general to confer any specific rights on which a breach of contract claim can be based.” Bauer v. American Freight System, Inc., 422 N.W.2d 435, 438 (S.D.1988); see Cutter, 794 F.2d at 355. We hold that, under South Dakota, American Colloid’s employee handbook does not create a just cause termination contract. We find the analogy to Wyoming law unpersuasive. South Dakota is more restrictive in defining what constitutes a “for cause only” contract. While Wyoming puts a great deal of importance on the term “permanent employee,” the South Dakota Supreme Court stated in Merritt v. Edson Express, Inc., 437 N.W.2d 528, 530 (S.D.1989) (Merritt) (citations omitted), “a promise of lifetime or permanent employment will be interpreted as indefinite and terminable at-will in the absence of some executed consideration in addition to the services being rendered.” Therefore, under South Dakota law, appellants remained employees-at-will and subject to termination at any time. “Additional Consideration\" Creating a Just Cause Termination Contract Many states have adopted an “additional consideration” rule whereby additional consideration beyond the traditional services for pay agreement can create a just cause termination contract. See, e.g., Corum v. Farm Credit Serv., 628 F.Supp. 707, 713 (D.Minn.1986) (Corum); Wolfe v. Graether, 389 N.W.2d 643, 653 (Iowa 1986) (Wolfe); Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 545 A.2d 334, 338-39 (1988) (Scott); Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 568 P.2d 764, 769 (1977) (Roberts). Appellants argue that the “additional consideration” rule was adopted by the South Dakota Supreme Court in the language from Merritt quoted above. Based on dicta in Merritt, appellants argue that" }, { "docid": "12683891", "title": "", "text": "made any additional representation as to the length of his employment, and BRWs employee handbook unambiguously stated that at-will principles would govern issues of termination. Friedman’s failure to protest the Human Resources Director’s memorandum is further support for this interpretation of the relationship. In similar circumstances, Minnesota appellate courts have frequently upheld summary dismissal of a breaeh-of-eontract claim. See, e.g., Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769 (Minn.App.1987). The district court correctly granted summary judgment dismissing Friedman’s contract claim. 2. Promissory Estoppel. The effect of the doctrine of promissory estoppel “is to imply a contract in law where none exists in fact.” Grouse v. Group Health Plan, 306 N.W.2d 114, 116 (Minn.1981). In Grouse, the Supreme Court of Minnesota applied the doctrine to a prospective employee who quit his job and turned down another offer in rebanee on an employment offer and then was never given a “good faith opportunity to perform his duties.” The Court emphasized that, because defendant had offered only an at-will position, damages should be measured by what plaintiff lost in quitting his prior employ and toning down the other offer. Friedman argues that his promissory es-toppel claim should survive BRW’s motion for summary judgment, relying on broad language used by the Minnesota Court of Appeals in reversing summary dismissal of promissory estoppel claims in Eklund v. Vincent Brass & Alum. Co., 351 N.W.2d 371, 378 (Minn.App.1984), and Rognlien, 443 N.W.2d at 220. However, in both of those eases, the employer had made a sufficiently clear and definite promise of long-term employment that summary dismissal of plaintiffs breach-of-contract claim was reversed as well. In our view, other recent Minnesota eases confirm that the promissory estoppel aspect of the decisions in Eklund and Rognlien must be limited to similarly definite offers of long-term employ. See Spanier v. TCF Bank Savings, 495 N.W.2d 18, 21 (Minn.App.1993); Harris v. Mardan Business Systems, Inc., 421 N.W.2d 350, 354 (Minn.App.1988); Aberman, 414 N.W.2d at 772-73; Corum v. Farm Credit Services, 628 F.Supp. 707, 715-16 (D.Minn.1986). Promissory estoppel requires proof of a promise, albeit one falling short of creating an" }, { "docid": "11182418", "title": "", "text": "Dakota Supreme Court stated in Merritt v. Edson Express, Inc., 437 N.W.2d 528, 530 (S.D.1989) (Merritt) (citations omitted), “a promise of lifetime or permanent employment will be interpreted as indefinite and terminable at-will in the absence of some executed consideration in addition to the services being rendered.” Therefore, under South Dakota law, appellants remained employees-at-will and subject to termination at any time. “Additional Consideration\" Creating a Just Cause Termination Contract Many states have adopted an “additional consideration” rule whereby additional consideration beyond the traditional services for pay agreement can create a just cause termination contract. See, e.g., Corum v. Farm Credit Serv., 628 F.Supp. 707, 713 (D.Minn.1986) (Corum); Wolfe v. Graether, 389 N.W.2d 643, 653 (Iowa 1986) (Wolfe); Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 545 A.2d 334, 338-39 (1988) (Scott); Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 568 P.2d 764, 769 (1977) (Roberts). Appellants argue that the “additional consideration” rule was adopted by the South Dakota Supreme Court in the language from Merritt quoted above. Based on dicta in Merritt, appellants argue that the secrecy agreements which they signed constituted “some executed consideration in addition to the services being rendered,” 437 N.W.2d at 530, because each gave up his right to work in the bentonite industry for three years following his termination from American Colloid. American Colloid argues that the secrecy agreement does not constitute adequate additional consideration to make appellants’ employment only terminable for cause. American Colloid argues that the covenant not to compete does not rise to the level of additional consideration which courts have found to create a just cause termination contract. The district court found that while the South Dakota Supreme Court would adopt the “additional consideration” rule as sent forth in dicta in Merritt, the present ease did not meet the requirements for additional consideration. Talkington, 767 F.Supp. at 1499-1500; Stedillie, 767 F.Supp. at 1506-07. We do not find it necessary to determine whether the South Dakota Supreme Court would adopt the dicta in Merritt because, even if the court did so, we agree with the district court that the secrecy agreement did" }, { "docid": "21576824", "title": "", "text": "contract was “for the balance of his career until retirement.” This argument is merit-less. The instruction Fallis now requests would have required a directed verdict for Pendleton; for under Ohio law a contract for employment “until retirement” is construed as an indefinite hiring, terminable at will. See Meredith v. Rockwell International Corp., 826 F.2d 463, 468 (6th Cir.1987) (citing Frankhart v. Jeep Corp., No. L-85-062 (Ohio App. Nov. 8, 1985)) [1985 WL 8222], Equally meritless is Fallis’ argument that his promissory estoppel claim should have been presented to the jury. Fallis contended that he changed his residence and employment in reliance on Pendleton’s offer of employment until retirement. The trial court properly directed a verdict for Pendleton on this issue. Because employment until retirement constitutes an at-will relationship in Ohio, “reliance on a purported promise of ‘permanent’ employment ‘must be construed as unreasonable and therefore insufficient to meet the requirements of a cause of action in promissory estoppel.’ ” Meredith, 826 F.2d at 469 (quoting Frankhart, slip. op. at 4). Appellant also challenges the District Court’s “massive” exclusion of evidence. After a careful review of the record, we conclude the trial judge did not abuse his discretion. The excluded evidence was only marginally relevant to the central issue before the jury: the nature of Fallis’ agreement with Pendleton. III. TORT CLAIMS Appellant contends the District Court erred in not applying Oregon law to his tort claims. Appellant’s tort count essentially sets forth a claim of wrongful discharge in violation of public policy. The viability of this claim turns on the choice of law, because Oregon permits a terminated at-will employee to bring a “public policy” tort action against his erstwhile employer, while Ohio generally does not. Compare Delaney v. Taco Time Int’l., Inc., 297 Or. 10, 681 P.2d 114 (1984), with Phung v. Waste Management, Inc., 23 Ohio St. 3d 100, 491 N.E.2d 1114 (1986). We conclude the District Court correctly applied Ohio law to appellant’s tort claims. The subject matter of the tort claim is coextensive with the contract claim. As discussed above, Ohio has the most significant contacts" }, { "docid": "22720564", "title": "", "text": "Process, 49 Ohio St. L.J. 95 (1988); Comment, Summary Judgment; The Majority View Undergoes A Complete Reversal in the 1986 Supreme Court, 37 Emory L.J. 171 (Winter 1988). . See, e.g., Emmons v. McLaughlin, 874 F.2d 351, 355 (6th Cir.1989); Cloverdale Equip. Co. v. . Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989); Cincinnati Newspaper Guild v. Cincinnati Enquirer, 863 F.2d 439, 444 (6th Cir.1988); Walters v. First Tennessee Bank, 855 F.2d 267, 272 (6th Cir.1988); Banks v. Rockwell Int’l North American Aircraft Operations, 855 F.2d 324, 325 (6th Cir.1988); Potters Medical Center v. City Hosp. Ass'n, 800 F.2d 568, 572 (6th Cir.1986). . See, e.g., McGahee v. Propane Gas Co., 858 F.2d 1487 (11th Cir.1988); Donate-Romero v. Colorado, 856 F.2d 384 (1st Cir.1988); Dowling v. City of Philadelphia, 855 F.2d 136 (3d Cir. 1988); Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659-60 n. 4 (7th Cir.), cert, denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987); Slaughter v. Allstate Ins. Co., 803 F.2d 857, 860 (5th Cir.1986); Burchett v. General Tel. Co. of the South, 699 F.Supp. 114, 116 (E.D.Ky.1988); Butler Foods, Inc. v. Trailer Marine Transp. Corp., 680 F.Supp. 472, 473 (D.P.R. 1988); American Floral Serv. v. Florists' Trans-world Delivery Ass’n, 633 F.Supp. 201, 227-28 (N.D.I11.1986). .This portion of the opinion is largely derived from an analysis by this writer which appeared in a work on Kentucky practice. See W. Ber-telsman & K. Philipps, Kentucky Practice, Rule 56.03, Comment 11 (1986, 1987, 1988 and 1989 Supp.). The analysis was endorsed by the Kentucky Court of Appeals in Smith v. Food Concepts, Inc., 758 S.W.2d 437 (Ky.App.1988). See also Bertelsman, Views from the Federal Bench, \"Significant Developments in the Law of Summary Judgments,” Kentucky Bench & Bar, vol. 51, no. 1 (Winter 1987). . See Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert, denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). . Matsushita, passim. See, e.g., Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 475 (7th Cir.1988) (rejecting argument that summary judgment should not be granted in complex" }, { "docid": "8656979", "title": "", "text": "later offer of employment which was “steady or continuing although nevertheless terminable at will,” Friedman v. BRW, Inc., 40 F.3d 293, 296 (8th Cir.1994) (quoting Pine River, 333 N.W.2d at 628-29). Likewise, Hitselberger’s statements that the position would be “long term” and that Fox “would be part of the turnaround of the hotel” and that she could do very well for herself do not constitute clear and definite promises for continued employment terminable only for cause. See Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769, 771 (Minn.Ct.App.1987) (holding “general statements of company policy are not definite enough”). Indeed, “[e]very utterance of an employer does not constitute an offer.” Corum, 628 F.Supp. at 713 (citing Pine River, 333 N.W.2d at 630). Minnesota courts have found many statements that are more clear and definite than those made by Hitselberger to be insufficient to support a claim of promissory estoppel. For example, statements made by an employer that “I will always take care of you,” “we are offering you security,” and “[you will be a] lifetime sales representative” were not sufficiently clear and definite. Aberman, 414 N.W.2d at 771-72 (alteration in original). Similarly, the Minnesota Supreme Court held that an employer’s telling his employee to “stay with the ship” and consider his employment a “career situation” were insufficient to show a clear and definite promise. Degen v. Investors Diversified Servs., Inc., 260 Minn. 424, 110 N.W.2d 863, 865-66 (1961); see also Corum, 628 F.Supp. at 714 (stating employee would have “job security” did not constitute clear and definite promise); Ruud, 526 N.W.2d at 371-72 (finding statement “good employees are taken care of’ was not clear and definite promise); Dumas, 380 N.W.2d at 548 (finding statement that employer and employee would “retire together” was not clear and definite promise). Fox attempts to distinguish Ruud, but otherwise does not even attempt to distinguish this line of cases. Instead, she relies on Rognlien v. Carter, 443 N.W.2d 217 (Minn.Ct.App.1989), and Grouse, 306 N.W.2d at 116, two cases in which Minnesota appellate courts reversed the dismissal of promissory estoppel claims. Rognlien and Grouse, however, are easily" }, { "docid": "22888226", "title": "", "text": "Maryland Community College, 955 F.2d 924, 926-28 (4th Cir.1992), but we need not decide today whether this is correct. A number of district courts have held that only “service” complying with all technical rules of state law starts the clock under § 1446(b). E.g., Baratt v. Phoenix Mutual Life Insurance Co., 787 F.Supp. 333 (W.D.N.Y.1992); Hill v. Boston, 706 F.Supp. 966 (D.Mass.1989); Hunter v. American Express Travel Related Services Corp., 643 F.Supp. 168 (S.D.Miss.1986); Thomason v. Republic Insurance Co., 630 F.Supp. 331 (E.D.Cal.1986); Love v. State Farm Mutual Automobile Casualty Co., 542 F.Supp. 65 (N.D.Ga.1982). A goodly number of other district courts have held that § 1446(b) means what it says. E.g., Mermelstein v. Maki, 830 F.Supp. 180 (S.D.N.Y.1993); Trepel v. Kohn, Milstein, Cohen & Hausfeld, 789 F.Supp. 881 (E.D.Mich.1992); Schwartz Bros., Inc. v. Striped Horse Records, 745 F.Supp. 338 (D.Md.1990); Dawson v. Orkin Exterminating Co., 736 F.Supp. 1049 (D.Colo.1990); Harding v. Allied Products Corp., 703 F.Supp. 51 (W.D.Tenn.1989); Conticommodity Services, Inc. v. Perl, 663 F.Supp. 27 (N.D.Ill.1987); Tyler v. Prudential Life Insurance Co., 524 F.Supp. 1211 (W.D.Pa.1981). Although “or otherwise” was added to the statute in 1949, see 63 Stat. 101, ours is only the second appellate decision on the subject. See Tech Hills II Associates v. Phoenix Home Mutual Insurance Co., 5 F.3d 963, 966-68 (6th Cir.1993). (Oblique references in Northern Illinois Gas, 676 F.2d at 273 n. 1, and Pochiro v. Prudential Insurance Co., 827 F.2d 1246, 1248-49 (9th Cir.1987), do not really tackle the question.) Like the judges who decided Tech Hills, we see no escape from the language of the statute. Some district courts have emphasized that the legislative history of the 1949 amendment does not contain a clear statement that “or otherwise” covers the situations to which we referred above, but courts are not authorized to disregard express language just because the legislative history does not echo “and we really mean it!” See Pittston Coal Group v. Sebben, 488 U.S. 105, 115, 109 S.Ct. 414, 420-21, 102 L.Ed.2d 408 (1988); Swain v. Pressley, 430 U.S. 372, 378-79, 97 S.Ct. 1224, 1228-29, 51 L.Ed.2d 411" }, { "docid": "23463262", "title": "", "text": "of Ohio, we will address this issue as well. The district court cited and relied upon Hawley v. Dresser Industries, Inc., 737 F.Supp. 445 (S.D.Ohio 1990), and Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 213 (6th Cir.1989), in holding that reliance upon a promise of permanent employment is legally insufficient to meet the requirements of an estoppel action. In Fallís the Sixth Circuit held that because a promise of permanent employment means employment at will, “reliance on a purported promise of permanent employment must be construed as unreasonable and therefore insufficient to meet the requirements of a cause of action in promissory estop-pel.” 866 F.2d at 213 (citing Frankart v. Jeep Corp., No. L-85-062, 1985 WL 8222 (Ohio.App. Nov. 8, 1985)) (internal quotations omitted); accord Meredith v. Rockwell Int’l Corp., 826 F.2d 463, 469 (6th Cir.1987). In Hawley, the district court relied on Fallís, Meredith, and Frankart, but failed to discuss Helmick v. Cincinnati Word Processing, 45 Ohio St.3d 131, 543 N.E.2d 1212 (1989), a case decided by the Ohio Supreme Court after each of the two Sixth Circuit cases, but prior to the decision in Hawley. In the present case, the district court’s reliance on federal cases interpreting Ohio law is only correct if those cases accurately reflect the law of Ohio. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Unlike the Sixth Circuit, the Supreme Court of Ohio has not held that reliance upon a promise of permanent employment is legally insufficient to meet the requirements of an estoppel action. Although that concept seems to fit logically into Ohio case law, the court’s decision in Helmick v. Cincinnati Word Processing, 45 Ohio St.3d 131, 543 N.E.2d 1212 (1989), leaves open the possibility that under some circumstances reliance on a lifetime promise could be considered reasonable. Since that case was decided after Fallís and Meredith, it merits discussion. The court in Helmick, emphasizing the specific nature of the promises made to the plaintiff and the extent of her detrimental reliance on those promises, reversed a grant of summary judgment" }, { "docid": "14788592", "title": "", "text": "336, 391 N.E.2d 1152, 1154 (1979)); see Rice v. Rent-A-Center of America, Inc., 664 F.Supp. 423, 427 (N.D.Ind.1987); see also Restatement (Second) of Contracts § 90 (1981). “Promissory estoppel is appropriate in actions such as these when a party takes certain steps to his detriment in order to avail himself of promised employment.” Eby v. York Div., Borg-Warner, 455 N.E.2d at 627; Rice v. Rent-A-Center of America, Inc., 664 F.Supp. at 427. To analyze Plaintiffs’ promissory estoppel arguments, this Court must determine whether Plaintiffs have established the existence of genuinely disputed issues of material fact on four elements — derived from the above formulation of the doctrine of prom issory estoppel and applied to the facts of the present case: (1) whether Zimmer made a definite promise of employment to Plaintiffs which promise alone induced them to move to Indiana in reliance thereon; (2) whether Plaintiffs’ move to Indiana constituted a substantial change; (3) whether Zimmer reasonably expected (or should have expected) that Plaintiffs would take such action; and (4) whether injustice can only be avoided by enforcing the promise. See Eby v. York-Div., Borg-Warner, 455 N.E.2d at 627 & n. 2. The first three elements are issues of fact, to which the fourth element, the equitable decision, is applied. Id. This Court is of the opinion that Defendant is entitled to summary judgment on Plaintiffs’ promissory estoppel claims. First, it appears to this Court that Indiana’s courts have never used a promissory estoppel theory to allow a plaintiff to recover anything more than moving expenses. Compare Eby v. York Div., Borg-Warner, 455 N.E.2d 623 (only seeking moving expenses) with Pepsi-Cola General Bottlers, Inc. v. Woods, 440 N.E.2d 696 (Ind.Ct.App.1982) (refusing to allow plaintiff, who was seeking enforcement of a contract for employment for a definite term, to use promissory estoppel). Plaintiffs in the present case are not seeking moving expenses. Second, Plaintiffs have failed to allege in their Complaints anything regarding Zimmer’s reasonable expectation that its representations about permanent employment would cause Plaintiffs to move to Indiana. Third, Plaintiffs have failed to present any evidence to this Court that" }, { "docid": "21576823", "title": "", "text": "some dispute as to where the contract was “finalized,” Ohio clearly had the most significant contacts with the contractual relationship. Fallis’ first interview with Pendleton took place in Ohio. After additional interviews in Oregon, Fallis again met with a Pendleton official in Ohio, and the two “shook hands” on an offer of employment; Fallis never had a written contract with Pendleton. Following the “handshake agreement,” Fallis travelled to Oregon for psychological tests, orientation, and briefings. While in Oregon, he also signed an acknowledgement of the applicability of a prior FTC consent order. Fallis resided in Ohio and operated his Pendleton distributorship out of an Ohio office. The contract was performed in Ohio and the surrounding states. Since the contract was negotiated and agreed to in Ohio, and largely performed in Ohio, we conclude the District Court correctly applied Ohio law to the contract. Fallis also objects to the District Court’s interrogatory asking the jury whether there was a contract for a “fixed term” between the parties, arguing the jury should have been asked whether the contract was “for the balance of his career until retirement.” This argument is merit-less. The instruction Fallis now requests would have required a directed verdict for Pendleton; for under Ohio law a contract for employment “until retirement” is construed as an indefinite hiring, terminable at will. See Meredith v. Rockwell International Corp., 826 F.2d 463, 468 (6th Cir.1987) (citing Frankhart v. Jeep Corp., No. L-85-062 (Ohio App. Nov. 8, 1985)) [1985 WL 8222], Equally meritless is Fallis’ argument that his promissory estoppel claim should have been presented to the jury. Fallis contended that he changed his residence and employment in reliance on Pendleton’s offer of employment until retirement. The trial court properly directed a verdict for Pendleton on this issue. Because employment until retirement constitutes an at-will relationship in Ohio, “reliance on a purported promise of ‘permanent’ employment ‘must be construed as unreasonable and therefore insufficient to meet the requirements of a cause of action in promissory estoppel.’ ” Meredith, 826 F.2d at 469 (quoting Frankhart, slip. op. at 4). Appellant also challenges the District" }, { "docid": "8656975", "title": "", "text": "the nonmoving party, giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence. Id. This Court will not set aside a jury’s verdict lightly, Nicks v. Missouri, 67 F.3d 699, 704 (8th cir.1995), nor will we “engage in a weighing or evaluation of the evidence or consider questions of credibility,” Keenan v. Computer Assocs. Int% Inc., 13 F.3d 1266, 1268-69 (8th Cir.1994). We conclude that Fox failed to present sufficient evidence at trial to withstand T-H’s motion. In Minnesota, the “usual employer-employee relationship is terminable at the will of either” party. Cederstrand v. Lutheran Bhd., 263 Minn. 520, 117 N.W.2d 213, 221 (1962). This means that the employer can summarily dismiss an employee for any reason or no reason at all, and similarly the employee is under no obligation to remain on the job. Corum v. Farm Credit Servs., 628 F.Supp. 707, 712 (D.Minn.1986). There is a “strong presumption” of at-will status in Minnesota. Spanier v. TCF Bank Sav., 495 N.W.2d 18, 21 (Minn.Ct.App.1993). Relying on the doctrine of promissory estoppel, Fox argues that her employment with T-H was not at will, but instead was “permanent” and terminable only for cause. Promissory estoppel is an equitable remedy that “may be used to enforce a promise of employment where no express contract of employment exists.” Eklund v. Vincent Brass and Aluminum Co., 351 N.W.2d 371, 378 (Minn.Ct.App.1984) (citing Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981)). To prevail on a claim of promissory estoppel under Minnesota law an employee must show three things: (1) that the employer made a clear and definite promise to the employee; (2) that the employer intended to induce the employee to rely on the promise and that the employee did so rely; and (3) that an injustice will occur unless the promise is enforced. See Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn.1995) (citing Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992)). In this case, the first element of a promissory estoppel claim is entirely absent. Fox produced no evidence that" }, { "docid": "23463261", "title": "", "text": "not turned down a job offer in reliance on the statements made by representatives of the defendant,” and that “plaintiff has failed to present any evidence to suggest that his investment decisions were based in any way on the alleged representations, nor that his alleged reliance was detrimental in any way.” 764 F.Supp. at 494. We find that the record supports these conclusions, and on that basis, the district court’s judgment for North American on the estoppel claim must be affirmed. Having found that Humphreys failed to carry his burden of producing evidence of detrimental reliance sufficient to raise a genuine issue as to that fact, it is not necessary to our decision to reach the issue of v/hether, as a matter of law in Ohio, reliance on a promise of permanent employment is sufficient to meet the requirements of an estoppel action. However, because the district court held that it is not, and because we believe that the district court’s analysis does not correctly state the law as it currently stands in the state of Ohio, we will address this issue as well. The district court cited and relied upon Hawley v. Dresser Industries, Inc., 737 F.Supp. 445 (S.D.Ohio 1990), and Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 213 (6th Cir.1989), in holding that reliance upon a promise of permanent employment is legally insufficient to meet the requirements of an estoppel action. In Fallís the Sixth Circuit held that because a promise of permanent employment means employment at will, “reliance on a purported promise of permanent employment must be construed as unreasonable and therefore insufficient to meet the requirements of a cause of action in promissory estop-pel.” 866 F.2d at 213 (citing Frankart v. Jeep Corp., No. L-85-062, 1985 WL 8222 (Ohio.App. Nov. 8, 1985)) (internal quotations omitted); accord Meredith v. Rockwell Int’l Corp., 826 F.2d 463, 469 (6th Cir.1987). In Hawley, the district court relied on Fallís, Meredith, and Frankart, but failed to discuss Helmick v. Cincinnati Word Processing, 45 Ohio St.3d 131, 543 N.E.2d 1212 (1989), a case decided by the Ohio Supreme Court after" }, { "docid": "22118457", "title": "", "text": "acts. See Rose v. Bartle, 871 F.2d 331, 357-58 (3d Cir.1989); Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1149-50 (10th Cir.1989); Leonard v. Shearson Lehman/American Express, Inc., 687 F.Supp. 177, 181 (E.D.Pa.1988); In re Rexplore, Inc. Sec. Litig., 685 F.Supp. 1132, 1141-42 (N.D.Cal.1988); P.M.F. Servs., Inc. v. Grady, 681 F.Supp. 549, 555-56 (N.D.Ill.1988); Omega Constr. Co. v. Altman, 667 F.Supp. 453, 464-65 (W.D.Mich.1987); Airlines Reporting Corp. v. Barry, 666 F.Supp. 1311, 1314-15 (D.Minn.1987); In re Gas Reclamation, Inc. Sec. Litig., 659 F.Supp. 493, 511 (S.D.N.Y.1987); Cincinnati Gas & Elec. Co. v. General Elec. Co., 656 F.Supp. 49, 84 (S.D.Ohio 1986); Gilbert v. Prudential-Bache Sec., Inc., 643 F.Supp. 107, 109 (E.D.Pa.1986); DeMuro v. E.F.Hutton, 643 F.Supp. 63, 66-67 (S.D.N.Y.1986); Eastern Corp. Fed. Credit Union v. Peat, Marwick, Mitchell & Co., 639 F.Supp. 1532, 1536-37 (D.Mass.1986); Heritage Ins. Co. of America v. First Nat'l Bank of Cicero, 629 F.Supp. 1412, 1417 (N.D.Ill.1986); and Econo-Car Int'l Inc. v. Agency Rent-A-Car, Inc., 589 F.Supp. 1368, 1372 n. 1 (D.Mass.1984). Contrary authority indicates that injury caused by predicate racketeering acts is sufficient for any type of section 1962 violation. See In re National Mortgage Equity Corp. Mortgage Pool Certificates Sec. Litig., 682 F.Supp. 1073, 1081-82 (C.D.Cal.1987); Smith v. MCI Telecommunications Corp., 678 F.Supp. 823, 828-29 (D.Kan.1987); Haroco, Inc. v. American Nat'l Bank & Trust Co. of Chicago, 647 F.Supp. 1026, 1032-33 (N.D.Ill.1986); Louisiana Power & Light Co. v. United Gas Pipe Line Co., 642 F.Supp. 781, 805-07 (E.D.La.1986); and Snider v. Loan Star Art Trading Co., 659 F.Supp. 1249, 1255-56, opinion upon reconsideration, 672 F.Supp. 977 (E.D.Mich.1987), aff’d by unpublished order, 838 F.2d 1215 (6th Cir.1988)." }, { "docid": "17465052", "title": "", "text": "F.2d 233 (6th Cir.1992); Estate of Korf v. A.O. Smith Harvestore Prods., Inc., 917 F.2d 480 (10th Cir.1990); Hines v. A.O. Smith Harvestore Prods., Inc., 880 F.2d 995 (8th Cir.1989); Agristor Leasing v. A.O. Smith Harvestore Prods., Inc., 869 F.2d 264 (6th Cir.1989); Agristor Leasing v. Saylor, 803 F.2d 1401 (6th Cir.1986); Hill v. A.O. Smith Corp., 801 F.2d 217 (6th Cir.1986); Klehr v. A.O. Smith Corp., 875 F.Supp. 1342 (D.Minn.1995); Veldhuizen v. A.O. Smith Corp., 839 F.Supp. 669 (D.Minn.1993); Thiss v. A.O. Smith Corp., No. 1-91-CV-239, 1993 WL 771013, 1993 U.S.Dist. Lexis 11846 (W.D.Mich. June 29, 1993); Mohr v. A.O. Smith Corp., No. 88-CV-10043-BC, 1994 WL 178111, 1993 U.S.Dist. Lexis 19226 (E.D.Mich. Mar. 25, 1993); Nelson v. A.O. Smith Harvestore Prods., Inc., No. 86-4230-R, 1990 WL 252135, 1990 U.S.Dist. Lexis 17850 (D.Kan. Dec. 4, 1990); Johnston v. Agristor Credit Corp., No. 84-4421-S, 1987 WL 348509, 1987 U.S.Dist. Lexis 12871 (D.Kan. Nov. 23, 1987); Agristor Leasing v. Meuli, 634 F.Supp. 1208 (D.Kan.1986), aff'd, 865 F.2d 1150 (10th Cir.1988); Boyd v. A.O. Smith Harvestore Prods., Inc., 776 P.2d 1125 (Colo.Ct.App.1989); Butler v. A.O. Smith Harvestore Prods., Inc., 518 N.W.2d 537 (Minn.1994); First Nat'l Bank of Louisville v. Brooks Farms, 821 S.W.2d 925 (Tenn.1991). Indeed, in affirm ing a substantial punitive damage verdict against the company, the Tenth Circuit observed that AOSHPI has known for quite some time \"that grain stored in Harvestore silos was subject to excessive spoilage.” Estate of Korf, 917 F.2d at 485. . Some of the plaintiffs explained that AOSHPI’s promotional materials likened the silos to sealed fruit jars that would preserve feed over time in nearly its original condition. . Indeed, to convince plaintiffs to purchase or lease one or more silos, Harvestore salesmen would formulate a \"farm plan\" specifically addressed to a particular farmer's operations. These plans projected the additional profits that could be realized through the use of Harvestore silos. . In addition to fraud, each plaintiff also alleged breach of contract, breach of implied warranty, breach of express warranty, and strict liability claims. . The parties agree that Indiana’s limitations periods apply in these" }, { "docid": "13862737", "title": "", "text": "injustice may depend on the reasonableness of the promises is reliance which is normally a question of fact for a jury to decide. Hawley v. Dresser Industries, Inc., 737 F.Supp. 445 (S.D.Ohio 1990) (J. Kinneary). The Hawley court held that when a promise is at most one of permanent employment, any reliance on the promise would be unreasonable and thus, the plaintiff’s claim was rendered vulnerable to summary judgment. Courts have held that when an employer promises an employee permanent employment or employment until retirement, any reliance on such promises would be unreasonable. Permanent employment constitutes an at-will employment, Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 213 (6th Cir.1989). Thus, such reliance is insufficient to meet the requirements of a cause of action in promissory estoppel. Id. Plaintiff contends that defendant promised plaintiff employment for as long as plaintiff wished with no cut in pay. This is permanent employment which is an employment-at-will contract which does not preclude termination. Plaintiff must show reasonable reliance to meet the fourth element of promissory estoppel, that injustice can be avoided only by enforcing the promise. Hawley supra. Such representations here are promises of permanent employment. Plaintiff cannot show reasonable reliance. This makes it impossible to meet the elements of promissory estoppel. The issue of actual reliance is immaterial to conclude that defendant must prevail as a matter of law for failure to meet an essential element of a promissory estoppel claim, the requirement that enforcement of the promise is necessary to avoid injustice. Id. Summary judgment is appropriate as to the plaintiff’s promissory estoppel claim. No genuine issue of material fact has been demonstrated as to plaintiff’s claims for employment contract or promissory es-toppel, either stated in his complaint or in his deposition. The plaintiff is an employee-at-will and thus can be terminated at any time by the employer. For these reasons plaintiff’s ERISA claims need not be addressed. Defendant is entitled to summary judgment on the issues of promissory estoppel, employment contract and ERISA. For the foregoing reasons, defendant’s motion for summary judgment is hereby GRANTED. IT IS SO ORDERED." }, { "docid": "23320574", "title": "", "text": "Pension Fund v. Prudential Sec., Inc., 91 F.3d 26, 29 (6th Cir.1996), cert. denied, -U.S. -, 117 S.Ct. 1252, 137 L.Ed.2d 333 (1997); Yasuda Fire & Marine Ins. Co. of Europe, Ltd. v. Continental Cas. Co., 37 F.3d 345, 346 & n. 1 (7th Cir. 1994); Transp. Cybernetics, Inc. v. Forest Transit Comm'n, Forest County, Wis., 950 F.2d 350, 351 n. 1 (7th Cir. 1991); Pac. Reinsurance Management Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019, 1021 (9th Cir.1991); Stroh Container Co. v. Delphi Indus., Inc., 783 F.2d 743, 748 n. 7 (8th Cir.), cert. denied, 476 U.S. 1141, 106 S.Ct. 2249, 90 L.Ed.2d 695 (1986); Ballantine Books, Inc. v. Capital Distributing Co., 302 F.2d 17, 19 (2d Cir. 1962); Wis. Comm’r of Ins. v. Cal. Reinsurance Management Corp., 819 F.Supp. 797, 800 (E.D.Wis.1993); First Commercial Financial Group, Inc. v. Baghdoian, 812 F.Supp. 837, 840 (N.D.Ill.1993); TM Marketing, Inc. v. Art & Antiques Assocs., L.P., 803 F.Supp. 994 (D.N.J. 1992); New Hope Baptist Church v. Design Bldg. Interiors, Inc., 789 F.Supp. 19, 19-20 (D.D.C. 1992); Quick & Reilly, Inc. v. Saglio, 717 F.Supp. 822, 824 (S.D.Fla.1989); Higgins v. United States Postal Serv., 655 F.Supp. 739, 741 (D.Me.1987); Hughes-Bechtol, Inc. v. W. Va. Bd. of Regents, 527 F.Supp. 1366, 1384 (S.D.Ohio 1981), aff'd, 737 F.2d 540 (6th Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984); Paley Assocs., Inc. v. Universal Woolens, Inc., 446 F.Supp. 212, 213 n. 1 (S.D.N.Y.1978); Litton RCS, Inc. v. Pa. Turnpike Comm'n, 376 F.Supp. 579 (E.D.Pa.1974), aff'd, 511 F.2d 1394 (3d Cir. 1975); Bangor & Aroostock R.R. Co. v. Maine Cent. R.R. Co., 359 F.Supp. 261, 263 (D.D.C.1973). . See Loral Corp. v. Swiftships, Inc., 77 F.3d 420, 422 (11th Cir.) (stating that subject matter jurisdiction for cases filed under section 9 \"must be based upon either diversity of citizenship or the existence of a federal question”), cert. denied, -U.S. -, 117 S.Ct. 390, 136 L.Ed.2d 306 (1996). . Section 2 establishes the validity, irrevocability, and enforceability of written agreements to arbitrate contained \"in any maritime transaction or a contract evidencing a" }, { "docid": "13862736", "title": "", "text": "has failed to present any evidence to suggest that his investment decisions were based in any way on the alleged representations, nor that his alleged reliance was detrimental in any way. Avoidance of summary judgment on the promissory estoppel claim may be achieved by plaintiff’s demonstration that at least genuine issues exist as to whether “(1) a promise was made by the defendant; (2) which the promissor should reasonably expect to induce action or forbearance; (3) which did induce such action or forbearance; and (4) enforcement of the promise if the only way to avoid injustice.” Talley v. Teamsters Local No. 377, 48 Ohio St.2d 142, 146, 357 N.E.2d 44, 47 (1976). Restatement (second) of Contracts § 90 (1981). In determining what the defendants’ representations meant, the Court must ascertain what the promissor should reasonably expect the employee to believe what the promise means. Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150 (1985). The fourth requirement of promissory estoppel, that the enforcement of the promise is the only way to avoid injustice may depend on the reasonableness of the promises is reliance which is normally a question of fact for a jury to decide. Hawley v. Dresser Industries, Inc., 737 F.Supp. 445 (S.D.Ohio 1990) (J. Kinneary). The Hawley court held that when a promise is at most one of permanent employment, any reliance on the promise would be unreasonable and thus, the plaintiff’s claim was rendered vulnerable to summary judgment. Courts have held that when an employer promises an employee permanent employment or employment until retirement, any reliance on such promises would be unreasonable. Permanent employment constitutes an at-will employment, Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 213 (6th Cir.1989). Thus, such reliance is insufficient to meet the requirements of a cause of action in promissory estoppel. Id. Plaintiff contends that defendant promised plaintiff employment for as long as plaintiff wished with no cut in pay. This is permanent employment which is an employment-at-will contract which does not preclude termination. Plaintiff must show reasonable reliance to meet the fourth element of promissory estoppel, that" }, { "docid": "12683892", "title": "", "text": "lost in quitting his prior employ and toning down the other offer. Friedman argues that his promissory es-toppel claim should survive BRW’s motion for summary judgment, relying on broad language used by the Minnesota Court of Appeals in reversing summary dismissal of promissory estoppel claims in Eklund v. Vincent Brass & Alum. Co., 351 N.W.2d 371, 378 (Minn.App.1984), and Rognlien, 443 N.W.2d at 220. However, in both of those eases, the employer had made a sufficiently clear and definite promise of long-term employment that summary dismissal of plaintiffs breach-of-contract claim was reversed as well. In our view, other recent Minnesota eases confirm that the promissory estoppel aspect of the decisions in Eklund and Rognlien must be limited to similarly definite offers of long-term employ. See Spanier v. TCF Bank Savings, 495 N.W.2d 18, 21 (Minn.App.1993); Harris v. Mardan Business Systems, Inc., 421 N.W.2d 350, 354 (Minn.App.1988); Aberman, 414 N.W.2d at 772-73; Corum v. Farm Credit Services, 628 F.Supp. 707, 715-16 (D.Minn.1986). Promissory estoppel requires proof of a promise, albeit one falling short of creating an enforceable contract. In the employment context, a cause of action for promissory estop-pel requires proof of a clear and definite promise of long-term employment terminable only for cause. Absent such a promise, the employee has no reasonable basis for relying on anything other than an at-will relationship. Thus, Friedman’s proof of a promise in this case is fatally defective. Moreover, Friedman could not reasonably rely on Amundsen’s promise of “permanent” employ given the employee handbook’s explicit statement that his employment would be terminable at will. In addition, we note that in Grouse, Eklund, and Rognlien, the plaintiff employee gave up other employment in reliance on the employer’s promise of long-term employ. As Grouse makes clear, promissory estoppel requires proof of detrimental reliance and damages are measured by the detriment. No Minnesota ease has applied the doctrine of promissory estoppel in the employment context absent substantially greater detrimental reliance than actions ordinarily incident to beginning a new job, such as moving to the new employer’s locale. 3. Fraud. Because there was no definite and enforceable promise" }, { "docid": "3803880", "title": "", "text": "proceedings under the most analogous state law limitations period in accordance with Tenth Circuit precedent. II. The district court did not decide whether a private right of action exists under § 17(a) of the 1933 Securities Act, 15 U.S.C. § 77q(a), because the court held that the limitations period would be the same as that for the § 10(b) and Rule 10b-5 claims and, therefore, also time-barred. Bath, 695 F.Supp. at 1162. Because we have determined that the district court erred in choosing the § 10(b) and Rule 10b-5 limitations period, we should address the issue of whether a private right of action exists under § 17(a). We do so because we signaled in 1981 that no such private right of action exists, Ohio v. Peterson, Lowry, Rall, Barber & Ross, 651 F.2d 687, 689 n. 1 (10th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981), and because a conflict among the district courts within this circuit exists. Compare Richey v. Westinghouse Credit Corp., 667 F.Supp. 752, 756-57 (W.D.Okla.1986) (private right of action under § 17(a)); Westland Energy, 1981-1, Ltd. v. Bank of Commerce & Trust Co., 603 F.Supp. 698, 710 (N.D.Okla.1984) (same) with Bradford v. Moench, 670 F.Supp. 920, 927-28 (D.Utah 1987) (no private right of action under § 17(a)); Creech v. Federal Land Bank, 647 F.Supp. 1097, 1100 (D.Colo.1986) (same); Woods v. Homes & Structures, Inc., 489 F.Supp. 1270, 1288 (D.Kan.1980) (same). Although the circuit courts have issued conflicting rulings, see Craighead v. E.F. Hutton Co., 899 F.2d 485, 492 (6th Cir.1990) (discussing split), six circuits (Fourth, Fifth, Seventh, Eighth, Ninth and Eleventh) find no private right of action under § 17(a). Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990) (finding no § 17(a) private right of action based upon earlier decision in Schlifke v. Seafirst Corp., 866 F.2d 935, 942-43 (7th Cir.1989)); Newcome v. Esrey, 862 F.2d 1099, 1104-07 (4th Cir.1988) (en banc) (overruling prior precedent and finding no § 17(a) private right of action); Currie v. Cayman Resources Corp., 835 F.2d 780, 783-85 (11th Cir.1988) (following reasoning of Fifth and" } ]

[ { "docid": "19002154", "title": "", "text": "the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” The government moved for Parker’s detention on October 20, and the hearing on that motion did not take place until November 1. Because this pretrial motion was pending throughout the time that elapsed between Parker’s initial appearance and his arraignment, the 11 days do not count toward his Speedy Trial clock. See United States v. Wright, 990 F.2d 147, 149 (4th Cir.1993) (excluding time during which government’s temporary detention motion was pending). Excluding these 11 days, a maximum of 69 days elapsed prior to Parker’s trial; there was no violation of the Speedy Trial Act. B. Multiplicity Claim Parker next argues his two firearm possession convictions — -one under § 922(g)(1) for being a felon in possession and one under § 922(g)(3) for being an illegal drug user in possession — are imper- missibly multiplicitous because they arise from a single incident of firearm possession involving the same gun. This objection was not raised at trial or at sentencing, so our review is limited to plain error. Our circuit has not addressed the question of whether a single incident of firearm possession may support multiple convictions under § 922(g) when the defendant is included in more than one class of persons the statute disqualifies ' from possessing firearms. We have concluded that a single incident of possession of a firearm and ammunition cannot support multiple convictions under § 922(h). See United States v. Oliver, 688 F.2d 224, 283 (7th Cir.1982) (the language of § 922(h) contains “no indication that Congress intended firearms and ammunition to be treated as separate violations”); see also United States v. Guice, 238 Fed.Appx. 167 (7th Cir.2007) (two § 922(g)(1) convictions for guns found in passenger compartment and trunk of defendant’s car are multiplicitous; no evidence suggested defendant acquired the guns at separate times). Those circuits that have addressed the question are in unanimous agreement that § 922(g) cannot support multiple convictions-based on a single firearm possession because the allowable unit of prosecution is the incident of" } ]

[ { "docid": "16965027", "title": "", "text": "offense after conviction. Nor may they be hit with “multiple punishments for the same offense imposed in a single proceeding.” Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989). The clause therefore prohibits the executive branch from doubling down, bringing multiple prosecutions or seeking successive punishments against a defendant for the same criminal offense. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); McCloud v. Deppisch, 409 F.3d 869, 873 (7th Cir.2005). Constantino’s argument fails because the punishment that resulted from his two § 924(c) convictions was not based on the same criminal conduct. Rather, he was convicted for possessing a gun during his drug activity on February 8 and separately for possessing a gun during his criminal conduct on February 14. He argues that he only violated § 924(c) once because he says his possession of the gun was continuous and uninterrupted throughout those seven days. He cites several cases interpreting 18 U.S.C. § 922(g) for the proposition that, where the same gun is involved, the defendant must relinquish and then reacquire actual and constructive possession of the gun to be charged twice with unlawful possession of the gun. See, e.g., United States v. Ellis, 622 F.3d 784, 794 (7th Cir.2010). Constantino contends that because he possessed the gun as part of his security job, and never relinquished and reacquired possession of it, he could only be charged once without running afoul of the Double Jeopardy Clause. But to compare § 922(g) and § 924(c)(1) is to confuse apples with oranges. The former, for its part, makes it a crime for enumerated groups of people to possess any firearm, such as felons, fugitives, and aliens unlawfully present in the United States. See 18 U.S.C. § 922(g). Our holdings that multiple § 922(g) firearm possession convictions and sentences violate double jeopardy where the defendant’s possession of the same firearm is uninterrupted are premised on the fact that the unit of prosecution in § .922(g) cases is the gun possession itself; one gun (or several guns simultaneously) possessed one time" }, { "docid": "23177980", "title": "", "text": "trial in the light most favorable to the government, and we draw every inference in its favor. Id. So long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the jury’s verdict will stand. Id. A person may be convicted under § 924(c)(1)(A) for “mere possession of a firearm” so long as “that possession is ‘in furtherance’ of a drug trafficking crime.” United States v. Lewter, 402 F.3d 319, 321 (2d Cir.2005). Marcus Snow does not dispute that he possessed the handguns alleged in the indictment, since he does not challenge his conviction under § 922(g)(1) for being a felon in possession of these particular firearms. At issue is whether there was sufficient evidence that he possessed the firearms “in furtherance” of the charged drug trafficking offenses. Snow argues that the evidence was insufficient, since it established “no more than that the guns were merely present where the Government alleged drug transactions to have taken place.” We find this argument unpersuasive. To be sure, Snow is correct that “the mere presence of a weapon at the scene of a drug crime, without more, is insufficient to prove that the gun was possessed ‘in furtherance of the drug crime.” United States v. Castillo, 406 F.3d 806, 814 (7th Cir.2005)(emphasis in original); see also United States v. Krouse, 370 F.3d 965, 967 (9th Cir.2004); United States v. Wahl, 290 F.3d 370, 375 (D.C.Cir.2002); United States v. Finley, 245 F.3d 199, 203 (2d Cir.2001). Accordingly, the government cannot convict under § 924(c)(1)(A) by relying on the generalization that “any time a drug dealer possesses a gun, that possession is in furtherance, because drug dealers generally use guns to protect themselves and their drugs.” United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.2000). Instead, the government must establish the existence of a specific “nexus” between the charged firearm and the charged drug selling operation. Finley, 245 F.3d at 203. Although courts look at a number of factors to determine whether such a nexus exists, the ultimate question is whether the firearm “afforded some" }, { "docid": "22804665", "title": "", "text": "of seven counts of violating § 922(g)(1) (which prohibits a felon from possessing any firearm or ammunition) and seven counts of violating § 922(g)(3) (which prohibits a drug user from possessing any firearm or ammunition) arising from firearms and ammunition seized from his house on October 4, 1995. Dunford, 148 F.3d at 387. Applying Bell and its progeny, we held that “a person who is disqualified because of membership in multiple classes [of § 922(g) ] does not thereby commit separate and multiple offenses.” Dunford, 148 F.3d at 389. To hold otherwise, we opined, would, in effect, criminalize “the status itself.” Id. Consequently, we held that the firearms and ammunition seized at the defendant’s house only could support one conviction under § 922(g). Dunford, 148 F.3d at 390. Moye’s multiplicity argument fails for the simple reason that this case does not involve charges under different subparts of § 922(g); rather, this case concerns different subsections of § 922. Unlike the sub-parts of § 922(g), there is no question in this case that Congress has fixed separate punishments for both § 922(g) and § 922(j). Moreover, the separate sections of § 922 under which Moye was convicted each require proof of different elements, thereby satisfying the Blockburger test. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (holding that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to' determine whether there are two offenses or only one is whether each statute requires proof of a fact which the other does not). A conviction under § 922(j) requires proof that the defendant knew the firearm was stolen, while a conviction under § 922(g)(1) does not. A conviction under § 922(g)(1) requires proof of felony status, while a conviction under § 922(j) does not. For these reasons, we reject Moye’s multiplicity argument. Cf. United States v. Buchmeier, 255 F.3d 415, 423 (7th Cir.2001) (holding that the government properly limited the charges it filed against the defendant for the seven firearms he simultaneously acquired and received" }, { "docid": "13074313", "title": "", "text": "beside Benjamin’s bed in an envelope with paperwork bearing his name was, in part, a drug ledger. Although Benjamin argues that evidence showed that teenagers used the basement for recreation, suggesting that the drugs may have belonged to them, we are required to view the evidence in the light most favorable to the Government. The District Court correctly held that there was sufficient evidence on the drug charges, and thus, we will affirm. B. Benjamin argues that if this Court determines that there was sufficient evidence to uphold his conviction for possession of the gun in the house, then that charge should merge with his conviction for possession of the gun at the gun range, which he does .not otherwise challenge on appeal, because the two charges are duplicative and violate the Double Jeopardy Clause. Benjamin did not raise this issue in the District Court, so we review for plain error. United States v. Miller, 527 F.3d 54, 70 (3d Cir.2008). We must determine whether entry of the two separate felon-in-possession convictions “constitutes ‘(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (alteration in original) (quoting United States v. Vazquez, 271 F.3d 93, 99 (3d Cir.2001)). 1. We begin by considering whether the District Court’s entry of separate convictions and sentences for possession of a firearm by Benjamin in violation of § 922(g)(1) constituted “error.” To answer that question, we must first consider whether the § 922(g)(1) felon-in-possession crime is a continuing offense. This is an issue of first impression in this Court, though our sister Courts of Appeals that have considered this issue have uniformly held that it is a continuing offense. See, e.g., United States v. Ellis, 622 F.3d 784, 793-96 (7th Cir.2010); United States v. Rivera, 77 F.3d 1348, 1351-52 (11th Cir.1996); United States v. Horodner, 993 F.2d 191, 193-94 (9th Cir.1993); United States v. Jones," }, { "docid": "5143733", "title": "", "text": "intent to distribute, see 21 U.S.C. § 841(a)(1); possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A); and possessing a firearm as a convicted felon, see id. § 922(g)(1) — involve one common element: possession. Morris now challenges this element with respect to each of his three convictions. For each of these offenses, possession can be either actual or constructive. See United States v. Irby, 558 F.3d 651, 654 (7th Cir.2009) (applying § 841(a)(1)); United States v. Castillo, 406 F.3d 806, 812 (7th Cir.2005) (applying § 924(c)(1)); United States v. Caldwell, 423 F.3d 754, 757-58 (7th Cir.2005) (applying § 922(g)(1)). Constructive possession is a legal fiction whereby an individual is deemed to “possess” contraband items even when he does not actually have immediate, physical control of the objects, i.e., the individual “does not possess them in a literal sense.” United States v. Windom, 19 F.3d 1190, 1200 (7th Cir.1994); see also United States v. Kitchen, 57 F.3d 516, 524 n. 2 (7th Cir.1995) (defining “actual possession”). Because the government does not contend that Morris actually possessed either the drugs or the gun, we confine our discussion to constructive possession. To determine constructive possession of both the drugs and the gun, we apply the same test. See, e.g., United States v. Kelly, 519 F.3d 355, 361 (7th Cir.2008). Compare Irby, 558 F.3d at 654 (requiring proof of “ownership, dominion, or control” to demonstrate constructive possession of drugs), with Caldwell, 423 F.3d at 758 (requiring that a person “ha[ve] the power ... to exercise dominion and control” over a gun). In either case, the government must prove a nexus between the defendant and the relevant item to separate true possessors from mere bystanders. Richardson, 208 F.3d at 632. Proximity to the item, presence on the property where the item is located, or association with a person in actual possession of the item, without more, is not enough to support a finding of constructive possession. Windom, 19 F.3d at 1200 (citing United States v. DiNovo, 523 F.2d 197, 201 (7th Cir.1975)). Instead, the defendant must exercise dominion" }, { "docid": "11563399", "title": "", "text": "with multiple violations of either § 922(g)(1) or § 922(j) where it can produce evidence demonstrating that the firearms were stored or acquired separately and at different times or places. See McFarland, 469 F.2d at 1279; Oliver, 683 F.2d at 232-33; see also United States v. Keen, 96 F.3d 425, 431 n. 11 (9th Cir. 1996) (“Guns that are acquired at different times or stored in separate places permit separate punishment to be imposed for each violation of § 922(g).”); Cunningham, 145 F.3d at 1398 (“When a felon possesses multiple weapons, only one offense is committed unless the weapons are stored or acquired at different times or places.”). But see United States v. Valentine, 706 F.2d 282, 294 (10th Cir.1983) (reserving the issue of whether “§ 922(h) ... should be construed to support multiple convictions because separate times of receipt and possession are shown”). Turning to the facts of this case, we find that the government properly limited the charges it filed against Buchmeier for the firearms he acquired from Schroeder on August 6, 1994. The government charged Buchmeier with having committed one violation of § 922(g)(1) (Count IV) and one violation of § 922® (Count VI) on August 6, listing all seven firearms involved in this transaction in these two counts. Because these firearms were simultaneously acquired and received by Bu-chmeier, any attempt to charge him with more than one violation of either § 922(g)(1) or § 922® for these seven firearms would have been multiplicitous. The closer question, however, is whether the government’s decision to charge Buchmeier with one count of violating § 922(g)(1) (Count I) and one count of violating § 922(j) (Count III) for the stolen firearms he acquired from Schroeder through the two transactions on August 5 resulted in these counts being duplicitous. Throughout this case the government has repeatedly described the interactions between Schroeder and Buchmeier as three separate acquisitions of stolen firearms in which Buchmeier, a convicted felon, attempted to arm himself unlawfully. The evidence supports this characterization. Thus, we find that the government could have charged Buchmeier with three separate counts of" }, { "docid": "16240647", "title": "", "text": "Illinois, double jeopardy prohibits a second punishment in the Indiana case after his conviction and sentence for unlawfully possessing the same gun in Illinois. As it did in the district court, the government argues that Ellis’s act of retrieving the second gun from his gang associate establishes that he committed two separate crimes rather than one continuous crime of possession, citing United States v. Conley, 291 F.3d 464, 470 (7th Cir.2002). In Conley we held that a felon may be charged with two crimes of unlawful possession of the same firearm under § 922(g)(1) if he possessed the gun, knowingly relinquished possession, and then reacquired possession of the gun. Id. at 470-71. Possession may be actual or constructive, and “there is no legal difference ... between actual and constructive possession.” United States v. Moses, 513 F.3d 727, 733 (7th Cir.2008); see also Conley, 291 F.3d at 468 n. 2. Therefore, a felon who unlawfully possesses a firearm and then relinquishes actual possession while maintaining constructive possession has committed only one violation of § 922(g)(1). Stated differently, a felon in this situation — one who maintains constructive possession of a firearm while another has actual possession of it — does not commit a new crime when he regains actual possession of the firearm. See United States v. Jones, 403 F.3d 604, 606 (8th Cir.2005) (handing firearm momentarily to officers does not establish interruption of constructive possession); United States v. Horodner, 993 F.2d 191, 193 (9th Cir.1993) (leaving firearm with repairman for one week does not establish break in constructive possession). Therefore, to charge and punish a defendant for more than one § 922(g)(1) offense for separate “possessions” of the same gun, there must be a relinquishment of both actual and constructive possession of the gun before it is reacquired. See United States v. Lloyd, 71 F.3d 1256, 1267 (7th Cir.1995). Here, Ellis argues that he committed only one continuous § 922(g)(1) offense involving both of the firearms from the June 2005 straw purchase — the one he kept at his mother’s house and the one that was in OG’s actual possession" }, { "docid": "19144258", "title": "", "text": "653 F.3d 729, 735 (8th Cir.2011). “The rule against multiplicitous prosecutions is based on the Fifth Amendment’s Double Jeopardy Clause, which ‘protects against multiple punishments for the same offense.’ ” United States v. Emly, 747 F.3d 974, 977 (8th Cir.2014) (citations omitted). When “an indictment includes more than one count charging the same statutory violation,” the court must determine “whether Congress intended the facts underlying each count to make up a separate unit of prosecution.” Id. (internal quotation marks omitted). Woolsey bases his claim on United States v. Richardson, 439 F.3d 421, 422 (8th Cir.2006) (en banc) (per curiam), which held that a defendant could not be prosecuted on separate counts for being a felon in possession of a firearm and a drug user in possession of the same firearm. In Richardson, there was only one firearm, and the two counts charged the defendant with possessing the firearm on the same date. Id. The court concluded that “Congress intended the ‘allowable unit of prosecution’ to be an incident of possession regardless of whether a defendant satisfied more than one § 922(g) classification, possessed more than one firearm, or possessed a firearm and ammunition.” Id. (quoting Bell v. United States, 349 U.S. 81, 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)). The Richardson court vacated the defendant’s sentence and remanded to the district court to merge the counts of conviction into one and resentence the defendant based on only one conviction under § 922(g). Id. at 423. Woolsey argues that plain error occurred here because he was charged, tried and convicted on two § 922(g) counts instead of one. Woolsey directs us to the fact that the dates he possessed the gun and ammunition overlapped in the indictment (December 2011 through April 20, 2012, and April 19-20, 2012, respectively). Woolsey argues the ‘multiplicitous’ indictment may have had a “psychological effect upon [the] jury by suggesting to it that [Woolsey] ha[d] committed not one but several crimes.” United States v. Sue, 586 F.2d 70, 71 (8th Cir.1978) (per curiam). He also argues that it is possible he received a longer sentence because" }, { "docid": "2390662", "title": "", "text": "PER CURIAM. Matthew Yancey pleaded guilty to possessing a firearm as an unlawful user of marijuana but reserved the right to argue on appeal that the offense of conviction, 18 U.S.C. § 922(g)(3), violates the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570,128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). We conclude that the statute is constitutional and affirm Yancey’s conviction. Police officers executed an arrest warrant for Yancey in June 2008. Yancey, who was 18 at the time, was carrying a loaded pistol and 0.7 grams of marijuana. He confessed that he had been smoking marijuana daily since age 16. Arrests for possession of marijuana in 2006 and again in 2008 corroborate this admission. A grand jury charged Yancey with violating 18 U.S.C. § 922(g)(3), which makes it a felony for a person “who is an unlawful user of or addicted to any controlled substance” to possess a gun. An “unlawful user” is someone, like Yancey, who regularly ingests controlled substances in a manner except as prescribed by a physician. See 27 C.F.R. § 478.11; United States v. Burchard, 580 F.3d 341, 352 (6th Cir.2009); United States v. Patterson, 431 F.3d 832, 839 (5th Cir.2005). Yancey conceded the violation but moved to dismiss the indictment on the ground that the statute violates the Second Amendment. Yancey cited Heller, which holds that the Second Amendment preserves an individual’s right to keep handguns for self-defense. 128 S.Ct. at 2821-22; United States v. Jackson, 555 F.3d 635, 636 (7th Cir.), cert. denied, — U.S.-, 130 S.Ct. 147, 175 L.Ed.2d 95 (2009). Although Yancey was carrying his gun outside his home, he argued that Heller shields him from prosecution because he is not a felon and the weapon is commonplace. And, Yancey continued, the government would need, but could not articulate, a compelling interest to justify dispossessing habitual drug users of their guns. The district court denied the motion, concluding that nothing in Heller prevents the government from criminalizing firearm possession by someone who habitually uses drugs illegally. Yancey then entered a conditional guilty plea and was sentenced to" }, { "docid": "16965029", "title": "", "text": "sustains one conviction. See United States v. Cureton, 739 F.3d 1032, 1041 (7th Cir.2014); United States v. Con ley, 291 F.3d 464 (7th Cir.2002). Section 924(c)(1), on the other hand, prohibits possessing a gun during a drug trafficking offense. See § 924(c)(1). Because the statute ties the gun possession charge to the underlying drug transaction, the unit of prosecution is each predicate offense in which a firearm is carried, used, or possessed with the intent to further the drug crime, as long as there is some meaningful difference in the conduct that led to each predicate offense. Cureton, 739 F.3d at 1041-43 (finding two predicate offenses supported only one § 924(c) conviction where the two predicate offenses were committed simultaneously and without any distinction in conduct); United States v. Paladino, 401 F.3d 471, 478 (7th Cir.2005); United States v. Cappas, 29 F.3d 1187, 1190 (7th Cir.1994) (“[SJeparate convictions are permissible [when] ... jury ... connects] each gun use to a separate predicate offense.”). So in a case involving two drug offenses based on separate and distinct conduct, a defendant’s “carrying of a gun during each of them constitute^] two violations of section 924(c).” Paladino, 401 F.3d at 478-79. Here, Constantino was convicted of two separate drug offenses, occurring on February 8 and February 14. The jury found that he possessed a gun in furtherance of each offense. Therefore, his two convictions for gun possession related to two separate drug offenses, not the same offense as prohibited by the Double Jeopardy Clause. See id. (finding separate drug offenses where defendant conducted two separate drug transactions on the same day). It is irrelevant that the same gun was used in each drug transaction or that Constantino had continuous possession of it; all that matters is that a firearm was involved in furthering each distinct drug offense. See id. at 478 (concluding that whether defendant used different guns or the same one was “of no significance”). But, Constantino argues, allowing continuous possession to constitute separate possession-in-furtherance charges leads to absurd results. He points out that a defendant who sells drugs to multiple customers" }, { "docid": "19057981", "title": "", "text": "stored at the same location. McFarland v. Pickett, 469 F.2d 1277, 1279 (7th Cir.1972); see also Moses, 513 F.3d at 731; United States v. Bu-chmeier, 255 F.3d 415, 422 (7th Cir.2001). That is, when a defendant’s possession of multiple firearms is “simultaneous and undifferentiated,” only one § 922(j) violation may be charged regardless of the quantity of firearms possessed. Buchmeier, 255 F.3d at 422. Likewise, a single act of gun possession can result in only one conviction under 18 U.S.C. § 922(g), even if the defendant violated § 922(g) in multiple ways or possessed multiple firearms at the same time. United States v. Bloch, 718 F.3d 638, 643 (7th Cir.2013) (ruling that convictions for both possession of firearm by a felon in violation of § 922(g)(1) and by a person with a misdemeanor domestic violence conviction in violation of § 922(g)(9) were improper when there was only one gun possession, and holding that only a single conviction was appropriate); see also United States v. Parker, 508 F.3d 434, 440 (7th Cir.2007) (“ § 922(g) cannot support multiple convictions based on a single firearm possession because the allowable unit of prosecution is the incident of possession, not the defendant’s membership in a class (or classes) of persons disqualified from possession.”). We have also held that distinctly committed crimes, even those committed on the same day, can support multiple § 924(c) violations and the consecutive sentences that result. United States v. Paladino, 401 F.3d 471, 478-79 (7th Cir. 2005). So where an armed defendant sold crack to one person in the morning, and after arming himself again sold crack to another person in the afternoon, we said, “These were unquestionably separate drug offenses, and therefore his carrying of a gun during each of them constituted two violations of section 924(c).” Id. And we affirmed an enhancement for the use of a bomb to rob a bank even though the defendant had been convicted under § 924(c)(1)(A) for the use of a firearm during the same bank robbery, reasoning that the use of a bomb was substantively and substantially different than the use" }, { "docid": "17106220", "title": "", "text": "sentenced to consecutive 120 month terms on each count. This runs afoul of our decision in United States v. Berry, 977 F.2d 915 (5th Cir.1992); see also United States v. Dunford, 148 F.3d 385, 389-90 (4th Cir.1998) (listing consensus of courts applying this double jeopardy rule). In Berry, a search of the defendant’s apartment yielded two handguns with ammunition, a third without ammunition, and a photograph of the defendant holding two of the weapons. Id. Berry (a convicted felon) was tried and convicted on three counts of possession of a firearm and one count of possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g), as well as one count of carrying a firearm in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Id. at 917-19. Thus, “Berry’s conviction was premised on one episode of possession of firearms and ammunition but he was convicted and sentenced separately for each weapon and the ammunition possessed.” Id. at 918. Ac cording to the court, “[t]his raise[d] serious questions of double jeopardy.” Id. The court in Berry first found that the conviction under § 924(c) did not raise double jeopardy concerns because it “involves an element distinct from any other offense charged, drug trafficking, and does not require proof of a prior felony conviction.” Id. at 919. The court, however, reached a different result with respect to the convictions under § 922(g)(1). The court explained: Berry’s multiple convictions and sentences for violation of 18 U.S.C. § 922(g)(1) ... are not so readily dispatched. Berry was convicted for possession of the guns only, there was no allegation or proof of other elements such as a separate act of transportation in interstate commerce, that the guns were procured by misrepresentation, that Berry was illegally in the country, or that one of the weapons was illegally altered. The evil Congress sought to suppress by section 922 was the arming of felons; the section is based on the status of the offender and not the number of guns possessed. For the same reasons, we cannot conclude that Congress intended the" }, { "docid": "17106221", "title": "", "text": "jeopardy.” Id. The court in Berry first found that the conviction under § 924(c) did not raise double jeopardy concerns because it “involves an element distinct from any other offense charged, drug trafficking, and does not require proof of a prior felony conviction.” Id. at 919. The court, however, reached a different result with respect to the convictions under § 922(g)(1). The court explained: Berry’s multiple convictions and sentences for violation of 18 U.S.C. § 922(g)(1) ... are not so readily dispatched. Berry was convicted for possession of the guns only, there was no allegation or proof of other elements such as a separate act of transportation in interstate commerce, that the guns were procured by misrepresentation, that Berry was illegally in the country, or that one of the weapons was illegally altered. The evil Congress sought to suppress by section 922 was the arming of felons; the section is based on the status of the offender and not the number of guns possessed. For the same reasons, we cannot conclude that Congress intended the simultaneous possession of ammunition to stand as a distinct unit of prosecution. Id. (emphasis added) (footnotes omitted). The court continued: In such an instance, the government may charge and try a defendant for multiple offenses, but there may not be simultaneous convictions and sentences for should the jury return guilty verdicts for each count, ... the district judge should enter judgment on only one of the statutory offenses. If in doubt of its ability to prove possession of any of the weapons involved, the government properly could have sought to prove possession of all. Moreover, had the government evidence that Berry obtained the guns at different times or stored them in separate places, then it could have sought to prove that. But simultaneous convictions and sentences for the same criminal act violates the double jeopardy clause. We perforce must vacate those sentences .... Id. at 920 (citations and internal quotation marks omitted). The court rejected the government’s argument that Berry’s failure to object to the indictment bars his double jeopardy argument, explaining, “[w]e apply a" }, { "docid": "16965028", "title": "", "text": "is involved, the defendant must relinquish and then reacquire actual and constructive possession of the gun to be charged twice with unlawful possession of the gun. See, e.g., United States v. Ellis, 622 F.3d 784, 794 (7th Cir.2010). Constantino contends that because he possessed the gun as part of his security job, and never relinquished and reacquired possession of it, he could only be charged once without running afoul of the Double Jeopardy Clause. But to compare § 922(g) and § 924(c)(1) is to confuse apples with oranges. The former, for its part, makes it a crime for enumerated groups of people to possess any firearm, such as felons, fugitives, and aliens unlawfully present in the United States. See 18 U.S.C. § 922(g). Our holdings that multiple § 922(g) firearm possession convictions and sentences violate double jeopardy where the defendant’s possession of the same firearm is uninterrupted are premised on the fact that the unit of prosecution in § .922(g) cases is the gun possession itself; one gun (or several guns simultaneously) possessed one time sustains one conviction. See United States v. Cureton, 739 F.3d 1032, 1041 (7th Cir.2014); United States v. Con ley, 291 F.3d 464 (7th Cir.2002). Section 924(c)(1), on the other hand, prohibits possessing a gun during a drug trafficking offense. See § 924(c)(1). Because the statute ties the gun possession charge to the underlying drug transaction, the unit of prosecution is each predicate offense in which a firearm is carried, used, or possessed with the intent to further the drug crime, as long as there is some meaningful difference in the conduct that led to each predicate offense. Cureton, 739 F.3d at 1041-43 (finding two predicate offenses supported only one § 924(c) conviction where the two predicate offenses were committed simultaneously and without any distinction in conduct); United States v. Paladino, 401 F.3d 471, 478 (7th Cir.2005); United States v. Cappas, 29 F.3d 1187, 1190 (7th Cir.1994) (“[SJeparate convictions are permissible [when] ... jury ... connects] each gun use to a separate predicate offense.”). So in a case involving two drug offenses based on separate and" }, { "docid": "16240646", "title": "", "text": "of Ellis’s motion to dismiss Count 9. See United States v. Gilmore, 454 F.3d 725, 729 (7th Cir.2006). The Double Jeopardy Clause of the Fifth Amendment prohibits “punishing twice, or attempting a second time to punish criminally, for the same offense.” Witte v. United States, 515 U.S. 389, 396, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (emphasis removed) (quotation marks omitted). The § 922(g)(1) felon-in-possession crime is a continuing offense. See United States v. Fleischli, 305 F.3d 643, 658 (7th Cir.2002) (“Possession of a firearm is a continuing offense which ceases only when the possession stops.”), superseded by statute on other grounds. As such, the Double Jeopardy Clause prohibits punishing Ellis twice for a continuous possession of the same gun, even under a theory that he is being charged for different “moments” of posses sion. See United States v. Hope, 545 F.3d 293, 296 (5th Cir.2008). Accordingly, if Ellis maintained possession of the second handgun from the June 2005 straw purchase in Indiana until he turned it over to federal agents the following month in Illinois, double jeopardy prohibits a second punishment in the Indiana case after his conviction and sentence for unlawfully possessing the same gun in Illinois. As it did in the district court, the government argues that Ellis’s act of retrieving the second gun from his gang associate establishes that he committed two separate crimes rather than one continuous crime of possession, citing United States v. Conley, 291 F.3d 464, 470 (7th Cir.2002). In Conley we held that a felon may be charged with two crimes of unlawful possession of the same firearm under § 922(g)(1) if he possessed the gun, knowingly relinquished possession, and then reacquired possession of the gun. Id. at 470-71. Possession may be actual or constructive, and “there is no legal difference ... between actual and constructive possession.” United States v. Moses, 513 F.3d 727, 733 (7th Cir.2008); see also Conley, 291 F.3d at 468 n. 2. Therefore, a felon who unlawfully possesses a firearm and then relinquishes actual possession while maintaining constructive possession has committed only one violation of § 922(g)(1). Stated" }, { "docid": "211906", "title": "", "text": "places, there is only one offense”); McFarland, 469 F.2d at 1277 (multiple sentences improper when no evidence of separate acquisition or storage). This line of reasoning was also adopted by this Court in United States v. Oliver, 683 F.2d 224 (7th Cir.1982), where we held that ammunition and a revolver cannot support separate offenses of receipt of a firearm or ammunition which has been shipped or transported in interstate or foreign commerce by any person convicted of a crime punishable by a prison term exceeding one year absent evidence that the ammunition and firearm were acquired at different times. In all these decisions, we ascertained that Congress intended to punish undifferentiated possession or receipt of multiple firearms no more severely that the possession or receipt of a single firearm. See also United States v. Hodges, 628 F.2d 350, 352 (5th Cir.1980) (undifferentiated possession of multiple firearms constitutes only one offense). These cases are directly on point and we conclude that McKinney cannot receive separate sentences for the firearms charges. Sections 924(c)(1) and 922(g)(1), under these facts, are only punishable as single offenses. The government did not demonstrate that the guns were stored or obtained in different locations or used in carrying out different drug trafficking crimes. All the guns were recovered from one location, the bedroom of the residence at 2238 East Laurel and only one had-the defendant's fingerprint. Furthermore, the defendant was convicted for use of a firearm in one narcotics transaction, not six. A firearm was only connected by witnesses to this one transaction and we are not presented with proof that a gun was used on six different occasions. Therefore, under Baugh, there can be only one possession and one use offense. Accordingly, we conclude that appellant’s concurrent and consecutive sentences on the firearms convictions violate the double jeopardy clause’s proscription against multiple punishment. Therefore, we vacate the sentences and remand the case to the district court for resentencing of the firearm crimes as one offense of possession of a firearm and one offense of use of a firearm. V. For the above stated reasons, we Affirm" }, { "docid": "19144261", "title": "", "text": "possession be charged in a single count is a misunderstanding of the law. The test is not whether there was any period of overlap, but whether the two items were separately acquired or stored. It is undisputed on this record that Wool-sey acquired the firearm and ammunition at separate times and in separate places, thus providing two separate “units of prosecution.” See Richardson, 439 F.3d at 422. Woolsey acquired the gun at a yard sale in Wyoming several years before giving it to Burley, and he acquired the ammunition at Wal-Mart in North Dakota more recently. While there are overlapping dates in the indictment for when Woolsey possessed both the gun and the bullets, there was a months-long gap between when Woolsey gave Burley the gun in December 2011 and when Woolsey gave Burley the ammunition used to kill himself in April 2012. Thus, it is undisputed that the gun and ammunition were stored separately during that time. Further, under plain error review, Woolsey cannot show he was prejudiced by the decision to prosecute him on two counts. Woolsey’s presentence report grouped both counts into one group, see U.S.S.G. § 3D1.1, so Woolsey’s base offense level would not have changed if he was charged with only one possession count rather than two. See U.S.S.G. § 2K2.1(a)(2) (setting base offense level at 24). In addition, the district court sentenced Woolsey to a below-guidelines sentence and never mentioned, at either the sentencing hearing or in the district court’s statement of reasons, the fact that Woolsey was convicted on two counts, rather than one. Because Woolsey cannot show prejudice, his multiplicitous argument necessarily fails plain error review. B. Constitutionality of 18 U.S.C. § 922(g)(1) Woolsey next argues that 18 U.S.C. § 922(g)(1) is unconstitutional on its face and as applied to him because it violates his rights under the Second Amendment. The Eighth Circuit has previously rejected facial challenges to the constitutionality of § 922(g)(1), see United States v. Joos, 638 F.3d 581, 586 (8th Cir.2011), and we likewise find Woolsey’s facial challenge to be without merit. To the extent the Eighth Circuit" }, { "docid": "19057980", "title": "", "text": "Home Builders v. Occupational Safety & Health Admin., 602 F.3d 464, 467 (D.C.2010). Our task here, determining the “unit of prosecution” in a § 924(c) case, i.e., “the minimum amount of activity for which criminal liability attaches,” is not a straightforward one. See United States v. Moses, 513 F.3d 727, 731 (7th Cir.2008) (citation omitted); see also Callanan v. United States, 364 U.S. 587, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961) (describing unit of prosecution as “whether conduct constitutes one or several violations of a single statutory provision”). A conviction under the statute depends upon an underlying crime of violence or drug trafficking crime, but “ § 924(c) creates an offense distinct from the underlying federal felony.” Simpson v. United States, 435 U.S. 6, 10, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). Following the Supreme Court’s Mann Act decision in Bell, we have ruled that a defendant may not be separately charged with unlawful possession of multiple stolen firearms under 18 U.S.C. § 922(j) when the firearms were acquired at the same time and stored at the same location. McFarland v. Pickett, 469 F.2d 1277, 1279 (7th Cir.1972); see also Moses, 513 F.3d at 731; United States v. Bu-chmeier, 255 F.3d 415, 422 (7th Cir.2001). That is, when a defendant’s possession of multiple firearms is “simultaneous and undifferentiated,” only one § 922(j) violation may be charged regardless of the quantity of firearms possessed. Buchmeier, 255 F.3d at 422. Likewise, a single act of gun possession can result in only one conviction under 18 U.S.C. § 922(g), even if the defendant violated § 922(g) in multiple ways or possessed multiple firearms at the same time. United States v. Bloch, 718 F.3d 638, 643 (7th Cir.2013) (ruling that convictions for both possession of firearm by a felon in violation of § 922(g)(1) and by a person with a misdemeanor domestic violence conviction in violation of § 922(g)(9) were improper when there was only one gun possession, and holding that only a single conviction was appropriate); see also United States v. Parker, 508 F.3d 434, 440 (7th Cir.2007) (“ § 922(g) cannot" }, { "docid": "19144259", "title": "", "text": "satisfied more than one § 922(g) classification, possessed more than one firearm, or possessed a firearm and ammunition.” Id. (quoting Bell v. United States, 349 U.S. 81, 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)). The Richardson court vacated the defendant’s sentence and remanded to the district court to merge the counts of conviction into one and resentence the defendant based on only one conviction under § 922(g). Id. at 423. Woolsey argues that plain error occurred here because he was charged, tried and convicted on two § 922(g) counts instead of one. Woolsey directs us to the fact that the dates he possessed the gun and ammunition overlapped in the indictment (December 2011 through April 20, 2012, and April 19-20, 2012, respectively). Woolsey argues the ‘multiplicitous’ indictment may have had a “psychological effect upon [the] jury by suggesting to it that [Woolsey] ha[d] committed not one but several crimes.” United States v. Sue, 586 F.2d 70, 71 (8th Cir.1978) (per curiam). He also argues that it is possible he received a longer sentence because he was charged with two counts instead of one. See United States v. Street, 66 F.3d 969, 975 (8th Cir.1995) (“The vice of multiplicity is that it may lead to multiple sentences for the same offense.” (citation omitted)). A felon’s possession of both a firearm and ammunition comprises only one offense, “barring proof that the firearms were obtained at different times or stored separately.” Richardson, 439 F.3d at 422; see also United States v. Cunningham, 145 F.3d 1385, 1398 (D.C.Cir.1998); United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir.1996). Thus, where the prosecution seeks “more than one charge under section 922(g), separate acquisition and storage of the weapons is an element of the crimes charged.” Cunningham, 145 F.3d at 1398. This element presents a question of fact to be submitted to the jury, “not a question of law for the court.” Id. at 1399. The record here indicates that this element was never submitted to the jury. We conclude, however, that no plain error occurred. Woolsey’s argument on appeal that some overlapping time requires" }, { "docid": "7278012", "title": "", "text": "statute if the evidence showed the felon received certain of the items on separate occasions. See id. (holding that, “absent any evidence that the defendants received the .12 gauge shotgun and the five rounds of ammunition on separate occasions, they could not lawfully be found guilty of receipt of the gun and the ammunition as separate crimes forming the subject of multiplicitous counts”). Pelusio'''s reasoning as to the receipt of multiple firearms and ammunition applies with equal force to the proscribed possession of such items in 18 U.S.C. § 922(g). Thus, we here hold that, although a convicted felon who simultaneously possesses various firearms and rounds of ammunition can generally only be charged with a single violation of § 922(g), multiple charges may well be warranted if the evidence shows that the felon acquired possession of the firearms or ammunition on different occasions, or that he stored them at different sites. As courts that have reached the same conclusion with respect to § 922(g) or its predecessor statute have sensibly observed, “ ‘[a]ny other determination would allow convicted felons and terrorists to establish armories where all of their weapons would be kept. The person in custody of the armory would then be subject to only a single charge of possession, although thousands of illegal and dangerous weapons were received and stockpiled at different times.’ ” United States v. Wiga, 662 F.2d at 1337 [9th Cir.] (quoting United States v. Bullock, 615 F.2d 1082, 1086 (5th Cir.1980)); see also United States v. Buchmeier, 255 F.3d at 423 [7th Cir.]; United States v. Cunningham, 145 F.3d at 1398-99 [D.C.Cir.]; United States v. Dunford, 148 F.3d at 388-90 [4th Cir.]; United States v. Keen, 104 F.3d 1111, 1118 n. 11 (9th Cir.1996); United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir.1996); United States v. Bonavia, 927 F.2d 565, 568-69 (11th Cir.1991); United States v. Frankenberry, 696 F.2d 239, 244-45 (3d Cir.1982); United States v. Rosenbarger, 536 F.2d 715, 720-21 (6th Cir.1976). Because Olmeda plainly possessed multiple rounds of ammunition at two different locations, one in the Southern District of New York, the" } ]

[ { "docid": "16985361", "title": "", "text": "Department will decline to extend final offers of employment to any applicant with a verified positive test result. Id. The only position subjected to applicant testing at issue here are motor vehicle operators. Ill Since this court ruled on the plaintiffs’ preliminary injunction motion, the legal framework for analyzing the Fourth Amendment implications of governmentally compelled urinalysis testing for drugs has changed. The disposition of the pending motion is now largely controlled by five recent decisions involving constitutional challenges to suspicionless, governmentally sponsored urinalysis testing for drugs. The first two decisions were issued by the Supreme Court and involved challenges to post-accident testing in the railroad industry, Skinner v. Railway Labor Executives Association, — U.S. -, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and to applicant testing for certain positions in the Customs Department. National Treasury Employees Union v. Von Raab, — U.S. -, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). The three most recent decisions, issued by the United States Court of Appeals for the District of Columbia Circuit, involved challenges to random testing in the Department of Justice, Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), random testing of various civilians in the Department of the Army, National Federation of Federal Employees (“NFFE”) v. Cheney, 884 F.2d 603 (D.C.Cir.1989), and random testing of certain employees in the Department of Transportation. American Federation of Government Employees (“AFGE\") v. Skinner, 885 F.2d 884 (D.C.Cir.1989). These decisions have established certain general principles. First, because “collection and testing of urine samples intrudes upon expectations of privacy that society has long recognized as reasonable,” government-sponsored urine testing for drugs “must be deemed [a] search[ ] under the Fourth Amendment.” Skinner, 109 S.Ct. at 1413; Von Raab, 109 S.Ct. at 1390 (Fourth Amendment protects against “unreasonable” searches conducted by the Government when it “acts as an employer”). But, the recognition that the Fourth Amendment applies to urine testing only starts the inquiry because the Fourth Amendment forbids only “unreasonable” searches and seizures. Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1413-14; AFGE v. Skinner, 885 F.2d at 889 (“This approach necessarily recognizes that" } ]

[ { "docid": "10805518", "title": "", "text": "for human lives and property. Von Raab, 489 U.S. at 670, 109 S.Ct. 1384; see Skinner, 489 U.S. at 628, 109 S.Ct. 1402. Similarly, this court has upheld the random drug testing of employees in “safety-sensitive” positions, such as those responsible for maintaining and operating trains, see BNSF Ry. Co. v. Dep’t of Transp., 566 F.3d 200, 206 (D.C.Cir.2009), airplanes, see Aeronautical Repair Station Ass’n, Inc. v. FAA 494 F.3d 161, 174 (D.C.Cir.2007); Am. Fed’n Gov’t Emps. v. Skinner, 885 F.2d 884, 892 (D.C.Cir.1989) (“AFGE”); Cheney, 884 F.2d at 610, and motor vehicles, see Nat’l Treasury Emps. Union v. Yeutter, 918 F.2d 968, 971-72 (D.C.Cir.1990); AFGE, 885 F.2d at 892, as well as those required to carry firearms in the performance of their duties, see Cheney, 884 F.2d at 612. In the context of hazardous material inspection, this court concluded that the government’s efforts to ensure that employees “whose exclusive assigned duties are [] intimately related to the prevention of public harm [ ] are eertifiably drug-free,” even by means of random drug testing, were “a reasonable precaution against the occurrence of the feared harm.” AFGE, 885 F.2d at 891 (emphasis added). Also, in Stigile v. Clinton, 110 F.3d 801 (D.C.Cir.1997), the court upheld a policy, based on the government’s interest in ensuring protection of the President and Vice President of the United States within the White House security perimeter, authorizing the random drug testing of employees who worked in the Old Executive Office Building, which is located adjacent to the White House. Although the harm that the government was seeking to prevent was unrelated to the performance of the duties of the economists for the Office of Management and Budget, the court explained that the relevant nexus “is that between the risk posed by a drug-using employee and the evil sought to be prevented by the testing.” Id. at 805. Beyond public safety and national security interests, the Supreme Court has also concluded that the public interest in deterring drug use by public schoolchildren is “important enough,” given the risks to their health and safety as well as the" }, { "docid": "7367301", "title": "", "text": "S.Ct. 1402, 103 L.Ed.2d 639 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). It is equally clear that the Fourth Amendment applies only to unreasonable searches and seizures. Skinner, 489 U.S. at 619, 109 S.Ct. at 1414. What is reasonable “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” Id. Courts are required to “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). The Supreme Court has stated that the very fact of individualized suspicion goes far toward making a search reasonable where the government has a legitimate interest in confirming the alleged violation. See Skinner, 489 U.S. at 623, 109 S.Ct. at 1416-17; National Treasury Employees Union v. Yeutter, 918 F.2d 968, 975 (D.C.Cir.1990). In this case, where Dykes operated a transit bus, there is no question that SEPTA had a legitimate interest in developing and administering a drug and alcohol testing program. In fact, in Transport Workers’ Local 234 v. SEPTA, 884 F.2d 709 (3d Cir.1988), we held that even random testing of SEPTA drivers was constitutionally justified given “SEPTA’s extensive evidence of a severe drug abuse problem among its operating employees.” Id. at 711. What we confront here, then, is not a policy alleged to be unconstitutional; the parties agree that the SEPTA suspicion-based testing policy is reasonable for purposes of the Fourth Amendment. Dykes alleges, instead, that the policy was not followed; SEPTA sought to have him submit to testing in the absence of reasonable suspicion. It is SEPTA’s violation of its own policy that allegedly renders the proposed search unreasonable. B. Ultimately, the question of whether a particular search is reasonable for purposes of the Fourth Amendment is not a question of fact. “Unlike a determination of ‘reasonableness’ in ordinary tort cases and some other contexts, this balancing process presents a" }, { "docid": "15103699", "title": "", "text": "employees of USDA’s Animal and Plant Health Inspection Service (APHIS). Together, the unions sought injunctions against random testing, reasonable suspicion testing, applicant testing, and post-accident testing. On cross-motions for summary judgment, the trial court permanently enjoined random urinalysis testing of APHIS inspectors and FNS computer specialists, finding that the government lacks a constitutionally sufficient interest in testing these workers. NTEU v. Yeutter, 733 F.Supp. at 409-13. The court refused, however, to enjoin reasonable suspicion testing, post-accident testing, or random testing of FNS motor vehicle operators, concluding in each case that the government has an interest in testing strong enough to override legitimate employee privacy concerns. Id. at 413-17. Finally, the district court rejected the unions’ constitutional challenge to applicant testing on standing grounds and dismissed statutory claims under the Civil Service Reform Act of 1978 and the Rehabilitation Act of 1973 as premature. Id. at 418. On appeal, NTEU challenges those portions of the district court’s order allowing USDA to go forward with random urinalysis drug testing of FNS motor vehicle operators and reasonable suspicion testing of all FNS workers. The National Association of Agricultural Employees is not a party to this appeal, and no other provisions of the USDA Program are at issue. Appellant does not challenge the district court’s disposition of its statutory claims. II. Analysis The judicial slate on Fourth Amendment challenges to government drug testing programs is already well-inscribed, with the Supreme Court’s pronouncements in Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), etched most deeply. In Skinner, the Court upheld Federal Railroad Administration regulations that required post-accident drug testing of railroad employees and permitted testing after rules violations or minor accidents, and upon suspicion of on-duty impairment. It stressed the contextual reasonableness of dispensing with warrant and probable cause requirements, 109 S.Ct. at 1415-16, the diminished privacy expectations of railroad workers with respect to inquiries into their health and fit ness, id., 109 S.Ct. at 1418-19, the risk that" }, { "docid": "9579816", "title": "", "text": "of privacy accorded government employees whose duties involve public safety and, therefore, the lower threshold of suspicion required to undertake regulatory searches of those employees given the compelling government interest at stake. See, e.g., Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (post accident drug testing of railway employees permitted by Federal Railroad Administration as well as testing after rules violations or minor accidents and upon suspicion of on-duty impairment); Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (mandatory urinalysis upheld of Customs Service employees whose duties are directly involved with drug interdiction or require the carrying of firearms); Nat’l Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990) (upholding “reasonable suspicion” drug testing and random urinalysis testing of Department of Agriculture employees holding “safety- or security-sensitive jobs”) Jones v. McKenzie, 833 F.2d 335 (D.C.Cir.1987), amended sub nom., 878 F.2d 1476 (D.C.Cir.1989) (probable cause not required for drug testing of District of Columbia school employees whose duties “involve direct contact with young school children and their physical safety”). II. Qualified Immunity When sued for damages under section 1983, state officials “generally 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Most recently, the Supreme Court stated that not only must the right be clearly established, but “the contours of the right must be 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, 3039, 97 L.Ed.2d 523 (1987); see also Siegert v. Gilley, 895 F.2d 797, 802 (D.C.Cir.1990), affirmed, — U.S. —, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Thus, as the Sixth Circuit stated, this court “must confine the issue to the determination of whether the Fourth Amendment encompasses the right of jail employees to be free from warrantless strip and body" }, { "docid": "16985379", "title": "", "text": "hazardous materials with either an evacuation or a serious injury, or damage to railroad property of $500,-000 or more. 109 S.Ct. at 1408. In finding that the suspicionless, post-accident testing was reasonable under the Fourth Amendment, Skinner stated that the government’s interest in protecting and preserving the public’s safety was compelling because the “[ejmployees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Id. at 1419. Balanced against this compelling governmental interest were the privacy expectations of the covered employees, who “logic and history showed” had “a diminished expectation of privacy” as to information relating to their physical condition and “the reasonable means of procuring such information.” Id. Skinner found that expectations of privacy were reduced by the employees’ participation in an industry that had historically been “regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of the covered employees.” Id. at 1418. The reason for the focus on the employees was also logical, according to the Court, because “an idle locomotive, sitting in the roundhouse, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs.” Id. at 1419. In its supplemental memorandum, the government argues that the Court of Appeals for this circuit has established that “strong safety interests support the testing of ... motor vehicle operators who are responsible, inter alia, for the transportation of visiting dignitaries and key Department officials and the operation of passenger-laden shuttle buses.” AFGE v. Skinner, 885 F.2d at 892. The government also cites American Federation of Government Employees (“AFGE”) v. Cavazos, 721 F.Supp. 1361 (D.D.C.1989) (upholding random testing of Department of Education motor vehicle operators). The plaintiffs’ opposition primarily attempts to distinguish Skinner both on the strength of the government’s interest here and the relatively undiminished expectations of privacy of these motor vehicle operators. They argue that the government’s interest here falls “far short” of the interest demonstrated in Skinner essentially because these drivers have “ordinary and run of the" }, { "docid": "15103701", "title": "", "text": "drug impaired railroad workers could “cause great human loss before any signs of impairment become noticeable to supervisors or others,” id., 109 S.Ct. at 1419, and the difficulty of detecting and deterring on-duty drug use through less intrusive means, id., 109 S.Ct. at 1419-20. In Von Raab, the Court upheld those parts of a Customs Service testing plan that mandated urinalysis of employees directly involved in drug interdiction and those required to carry firearms. The Court followed the analytic path taken in Skinner, weighing the public interest in drug testing against the reasonable privacy expectations of tested employees. 109 S.Ct. at 1392-96. The record did not allow assessment of the reasonableness of testing Customs Service workers with access to classified material, however, so the Court remanded for further proceedings on this issue. Id., 109 S.Ct. at 1396-97. Skinner and Von Raab establish that compelled urinalysis is a Fourth Amendment search, but also that individualized suspicion of drug use is not an invariable constitutional necessity. Skinner, 109 S.Ct. at 1412-13, 1417; Von Raab, 109 S.Ct. at 1390. Where urinalysis “serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in a particular context.” Von Raab, 109 S.Ct. at 1390. With this framework in mind, we turn to the challenges appellant brings before us. A. Motor Vehicle Operators We do not start from scratch when evaluating NTEU’s challenge to random testing of FNS drivers, a fact that greatly simplifies our balancing task. Because this part of USDA’s Program parallels provisions of a Department of Transportation (DOT) drug testing program upheld in American Federation of Government Employees (AFGE) v. Skinner, 885 F.2d 884 (D.C.Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1960, 109 L.Ed.2d 321 (1990), we need only decide whether the few distinctions between these situations require us to reach a different result here. In AFGE v. Skinner this court noted that: [S]trong safety interests support the testing of most Department [of" }, { "docid": "15700206", "title": "", "text": "is served by the intrusion. In the two leading Supreme Court eases considering, under Fourth Amendment jurisprudence, drug and alcohol testing of employees, the Court found two governmental interests compelling enough to allow testing without individualized suspicion: maintenance of a workforce of fit employees with “unimpeachable integrity and judgment,” and enhancement of public safety. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 670, 109 S.Ct. 1384, 1393, 103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executives’ Assoc., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The Court did not, however, cast a wide net and hold that a general interest in workforce integrity or public safety was sufficient to eliminate a requirement of individualized suspicion. These governmental interests were tied to the “operational realities of the workplace.” Ortega, 480 U.S. at 717, 107 S.Ct. at 1497. Nor did the Court “[make an] effort to articulate an analytical rule by which legitimate drug-testing programs could be distinguished from illegitimate ones.” Harmon v. Thornburgh, 878 F.2d 484, 488 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). Thus, the “[a]p-plication of Von Raab [and Skinner ] to the facts of the present case presents a delicate task.” Id. The programs at issue in Skinner and Von Raab can be distinguished from Brookline’s Testing Policy. In Skinner, the Court upheld Federal Railroad Administration regulations mandating drug and alcohol testing of employees after serious railroad accidents. It also allowed testing of employees who had violated certain safety regulations. The program in Skinner was not truly random. Instead, testing was triggered by an event such as a train accident or safety rule violation. Thus, though there was no requirement of “individualized suspicion of any particular employee, [the program at issue in Skinner ] at least require[d] concrete evidence that events ha[d] not gone as planned.” Harmon, 878 F.2d at 488. Dispensing with the individualized suspicion requirement in such cases facilitates the gathering of vital information that might disappear after a few hours in an employees’ bloodstream. The public safety concerns regarding the Railroad industry and the deterrent" }, { "docid": "16985380", "title": "", "text": "also logical, according to the Court, because “an idle locomotive, sitting in the roundhouse, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs.” Id. at 1419. In its supplemental memorandum, the government argues that the Court of Appeals for this circuit has established that “strong safety interests support the testing of ... motor vehicle operators who are responsible, inter alia, for the transportation of visiting dignitaries and key Department officials and the operation of passenger-laden shuttle buses.” AFGE v. Skinner, 885 F.2d at 892. The government also cites American Federation of Government Employees (“AFGE”) v. Cavazos, 721 F.Supp. 1361 (D.D.C.1989) (upholding random testing of Department of Education motor vehicle operators). The plaintiffs’ opposition primarily attempts to distinguish Skinner both on the strength of the government’s interest here and the relatively undiminished expectations of privacy of these motor vehicle operators. They argue that the government’s interest here falls “far short” of the interest demonstrated in Skinner essentially because these drivers have “ordinary and run of the mill” safety responsibilities. Pltf’s Supp.Mem. at 10. They urge the court to follow its ruling on the motion for a preliminary injunction and distinguish these drivers from mass transit workers and the like on the grounds that the gravity of the harm presented by these drivers is qualitatively lower. Id. (citing Lyng, 706 F.Supp. at 947 & n. 48). The plaintiffs also point out that the privacy expectations of the motor vehicle operators are stronger than those in Skinner and Von Raab for two reasons. First, they note that the testing at issue here is random, not post-accident testing “where testing would occur in the context of a highly unusual circumstance when employee expectations of privacy are already reduced — a major train wreck,” nor applicant testing “where applicants know at the outset that a drug test is a requirement of these positions.” Second, they argue that these operators are not employed in an industry that “ ‘is pervasively regulated’ to protect safety, where the employees are a ‘central focus’ of the regulatory concern.” Id." }, { "docid": "16985362", "title": "", "text": "in the Department of Justice, Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), random testing of various civilians in the Department of the Army, National Federation of Federal Employees (“NFFE”) v. Cheney, 884 F.2d 603 (D.C.Cir.1989), and random testing of certain employees in the Department of Transportation. American Federation of Government Employees (“AFGE\") v. Skinner, 885 F.2d 884 (D.C.Cir.1989). These decisions have established certain general principles. First, because “collection and testing of urine samples intrudes upon expectations of privacy that society has long recognized as reasonable,” government-sponsored urine testing for drugs “must be deemed [a] search[ ] under the Fourth Amendment.” Skinner, 109 S.Ct. at 1413; Von Raab, 109 S.Ct. at 1390 (Fourth Amendment protects against “unreasonable” searches conducted by the Government when it “acts as an employer”). But, the recognition that the Fourth Amendment applies to urine testing only starts the inquiry because the Fourth Amendment forbids only “unreasonable” searches and seizures. Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1413-14; AFGE v. Skinner, 885 F.2d at 889 (“This approach necessarily recognizes that not every invasion of privacy is proscribed by the Fourth Amendment.”). While a search must usually be supported by a warrant and probable cause to meet the Fourth Amendment’s reasonableness requirement, “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1414-16, 1417 (“We have made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable.”). Instead, the Court has recognized “that where a Fourth Amendment intrusion serves special needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1414. After finding that certain special governmental needs existed in both Skinner and Von Raab, the Court applied this balancing test" }, { "docid": "7131503", "title": "", "text": "perform his military duties. More recently, in Unger v. Ziemniak, 27 MJ 349 (CMA 1989), we reiterated our conclusion that compulsory drug testing of servicemembers is constitutionally permissible in order to maintain military effectiveness, regardless of the limitations on such testing in the civilian community. We also suggested that compulsory drug testing already had “performed a significant role” in achieving a dramatic reduction in drug use among servicemembers. Id. at 357 n. 16. Subsequent to our decision in Unger, the Supreme Court dealt with compulsory drug testing in Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). In Skinner, the Court upheld, against a Fourth-Amendment challenge, regulations promulgated by the Federal Railroad Administration (FRA) requiring blood and urine tests to be administered to certain railroad employees following major train accidents. In Von Raab, by a five-to-four vote, the Supreme Court permitted compulsory urinalysis for some employees of the Customs Service; but at the same time, it made clear that the Government must show why the duties of the employees being tested warranted subjecting them to compulsory urinalysis. See also National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C.Cir., 1989). We recognize that some distinctions can be drawn between the situations where compulsory drug testing was upheld in Skinner and Von Raab and the urinalysis program which the armed services have instituted as a means of maintaining military fitness. Justice Kennedy, writing for the majority in Skinner, observed: The FRA has prescribed toxicological tests, not to assist in the prosecution of employees but rather “to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.” 489 U.S. at -, 109 S.Ct. at 1415, 103 L.Ed.2d at 639. On the other hand, when compulsory drug tests are performed in the armed services as part of a unit “inspection” pursuant to Mil.R.Evid. 313, positive test results are routinely made available for use in criminal prosecutions. Justice Kennedy also noted" }, { "docid": "15103702", "title": "", "text": "1390. Where urinalysis “serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in a particular context.” Von Raab, 109 S.Ct. at 1390. With this framework in mind, we turn to the challenges appellant brings before us. A. Motor Vehicle Operators We do not start from scratch when evaluating NTEU’s challenge to random testing of FNS drivers, a fact that greatly simplifies our balancing task. Because this part of USDA’s Program parallels provisions of a Department of Transportation (DOT) drug testing program upheld in American Federation of Government Employees (AFGE) v. Skinner, 885 F.2d 884 (D.C.Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1960, 109 L.Ed.2d 321 (1990), we need only decide whether the few distinctions between these situations require us to reach a different result here. In AFGE v. Skinner this court noted that: [S]trong safety interests support the testing of most Department [of Transportation] motor vehicle operators, who are responsible for, inter alia, the transportation of visiting foreign dignitaries and key Department officials and the operation of passenger-laden shuttle buses. Shuttle buses transport as many as 1,200 passengers each day. Thus, obvious safety interests support the testing of the majority of the Department’s motor vehicle operators. 885 F.2d at 892 (citations omitted). Safety interests alone were not sufficient to validate random testing of DOT mail van operators, but the court found that strong national security concerns supported testing of these employees. Id. at 892-93. The procedures for random testing of FNS drivers are identical in relevant respects to those at issue in AFGE v. Skinner, as both USDA and DOT follow drug testing regulations issued by the Department of Health and Human Services. See AFGE v. Skinner, 885 F.2d at 887; U.S. Dep’t of Agric., Drug-Free Workplace Program § 13-1(A); see also Mandatory Guidelines for Federal Workplace Drug Testing Programs, 53 Fed.Reg. 11,970 (1988). Thus, only the specific duties of FNS and DOT drivers and differences in reasonable" }, { "docid": "12356007", "title": "", "text": "as to brake switching and conducting personnel and locomotive operators must be denied. Defendants argue that drug testing of motor vehicle operators is necessary because they “will come into contact with other drivers and pedestrians and are, therefore, in a position ‘where even a momentary lapse of attention’ could result in harm.” Amer. Fed. of Gov. Employees v. Cavazos, 721 F.Supp. 1361 (D.D.C.1989). In Cavazos, the district court of D.C. upheld drug testing for nine Department of Education drivers, finding that the drivers “would come into direct contact with other drivers and pedestrians and are therefore in a position where ‘even a momentary lapse of attention’ could result in harm.” Id. at 1373, quoting Skinner, 489 U.S. at -, 109 S.Ct. at 1419, 103 L.Ed.2d at 667. The court stated, however, that it based its holding not solely on Skinner and Von Raab, but largely on the finding in the D.C. Circuit case of Harmon, 878 F.2d 484, which upheld drug testing for Department of Justice employees with top secret security clearances, but did not address motor vehicle operators. Harmon focused, not on the magnitude of the harm, but, on the immediacy of the threat. Later cases in the district court of D.C. have upheld random testing of Department of Agriculture and Department of Health and Human Services motor vehicle operators, again focusing on the immediacy of a threat of severe injury. National Treasury Employees Union v. Yeutter, 733 F.Supp. 403 (D.D.C.1990) (dissolving a preliminary injunction entered before the Von Raab, Skinner and Skinner, D.C. decisions that enjoined testing of Department of Agriculture motor vehicle operators); AFGE v. Sullivan, 744 F.Supp. 294 (D.D.C.1990). In Sullivan, the court did express its interest in having the parties narrow the categories to remove from random testing any employees whose jobs involved little driving. The district court for the Northern District of California has also approved testing of navy civilians employed as motor vehicle operators and locomotive engineers, finding that these positions have regular duties in which a single lapse may cause serious injury or death. AFGE Local 1533 v. Cheney, C88-3823, C89-4112, C89-4443" }, { "docid": "15873348", "title": "", "text": "it mandated the random testing of these categories of employees. On December 16, 1988, the day after oral argument, this court ordered that the injunction be modified to permit the random testing of workers in these categories. At present, therefore, the controversy is limited to the Department’s requirement of random drug testing for federal prosecutors, workers with access to grand jury proceedings, and employees holding top secret national security clearances. C. Intervening Supreme Court Decisions Our disposition of this case is guided— and, to a large extent, controlled — by the Supreme Court’s recent decisions in National Treasury Employees Union v. Von Raab, — U.S. -, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and Skinner v. Railway Labor Executives’ Association, — U.S. -, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). In Von Raab, the Court upheld the requirement that workers seeking transfer or promotion to specified positions within the United States Customs Service must undergo urinalysis. In Skinner, the Court sustained Federal Railroad Administration regulations which required blood and urine tests for train workers in the event of certain types of railway accidents. These regulations also permitted, but did not require, the testing of employees who had been found to violate certain safety rules. From these decisions certain general principles may be gleaned. Urinalysis, if compelled by the government, is a “search” subject to the restrictions of the fourth amendment. See Skinner, 109 S.Ct. at 1412-13; Von Raab, 109 S.Ct. at 1390. However, individualized suspicion of a particular employee is not required by the Constitution. See Skinner, 109 S.Ct. at 1417; Von Raab, 109 S.Ct. at 1390. Nor is it necessary that a documented drug problem exist within the particular workplace at issue. See Von Raab, 109 S.Ct. at 1395 (“The mere circumstance that all but a few of the employees tested are entirely innocent of wrongdoing does not impugn the program’s validity.”). Rather, “where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to" }, { "docid": "9579815", "title": "", "text": "finds the defendants sufficiently substantiated the anonymous tip, and thus the combination of the call and the officials’ testimony satisfies the reasonable suspicion standard. The Court also takes special note of the established judicial deference accorded to prison administrators in these situations which “extends ... to prophylactic or preventive measures”. Whitley v. Albers, 475 U.S. 312, 322, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986) (security measures undertaken by prison officials to quell a riot, including the nonfatal shooting of an inmate, did not constitute cruel and unusual punishment); Bell, 441 U.S. at 547, 99 S.Ct. at 1878 (“prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security”). Finally, in holding that the anonymous call and prior knowledge of defendants Green and Roach constitute reasonable suspicion, this Court has weighed the considerable case law upholding regulatory searches of government employees and the related policy considerations. These cases underscore the diminished reasonable expectation of privacy accorded government employees whose duties involve public safety and, therefore, the lower threshold of suspicion required to undertake regulatory searches of those employees given the compelling government interest at stake. See, e.g., Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (post accident drug testing of railway employees permitted by Federal Railroad Administration as well as testing after rules violations or minor accidents and upon suspicion of on-duty impairment); Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (mandatory urinalysis upheld of Customs Service employees whose duties are directly involved with drug interdiction or require the carrying of firearms); Nat’l Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990) (upholding “reasonable suspicion” drug testing and random urinalysis testing of Department of Agriculture employees holding “safety- or security-sensitive jobs”) Jones v. McKenzie, 833 F.2d 335 (D.C.Cir.1987), amended sub nom., 878 F.2d 1476 (D.C.Cir.1989) (probable cause not required for drug testing of District of Columbia school employees whose duties “involve" }, { "docid": "392769", "title": "", "text": "general managers, and its past and present officials in charge of implementing the testing program. The prayer is for a declaratory judgment that the testing program is unconstitutional facially and as applied, damages for lost earnings and emotional distress, and an injunction to prohibit testing Mr. and Mrs. Gonzalez pursuant to the program. The district court ruled that (1) federal regulations requiring urine testing of employees implicate the Fourth Amendment under Skinner v. Railway Labor Executives’ Ass’n., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), because they invade reasonable expectations of privacy, as plaintiffs argued; (2) reasonableness under the Fourth Amendment is evaluated by balancing the intrusiveness of the test against the government interest satisfied by testing, under National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); (3) but the federal regulations requiring random testing of employees such as plaintiffs satisfy the balancing test. Defendants’ motion to dismiss was accordingly granted with prejudice. Analysis. I. The regulations. The Transit Authority argues that the urine tests can properly be required of Mr. and Mrs. Gonzalez under duly authorized federal regulations. The Gonzalezes argue that their jobs do not properly fit under the “safety sensitive personnel” definition under the regulation, or if they do, the definition is broader than the statute permits. The statute requires the Secretary of Transportation to issue regulations for random testing and to make the decision which categories of employees are to be treated as “safety-sensitive” and tested. Congress required the Secretary to issue regulations “to conduct ... random testing of mass transportation employees responsible for safety-sensitive functions fas decided by the Secretary) for the use of a controlled substance ... and to conduct ... random ... testing of such employees for the use of alcohol.... ” 49 U.S.C. § 5331(b)(1)(A) (emphasis added). The regulations define “safety-sensitive function” to include anyone who operates a “revenue sendee vehicle” such as a city bus, “including when not in revenue service.” 49 C.F.R. § 653.7; 49 C.F.R. § 654.7. That may cover Mr. Gonzalez, described by the complaint as a “Transit" }, { "docid": "12355982", "title": "", "text": "of the overall flexibility of the test for preliminary injunctive relief, the Sixth Circuit has stated that irreparable harm element is to be analyzed carefully. In Friendship Materials, Inc. v. Michigan Brick, Inc., the court said: Despite the overall flexibility of the test for preliminary injunctive relief, and the discretion vested in the district court, equity has traditionally required [a showing of] irreparable harm before an interlocutory injunction may be issued. 679 F.2d 100, 103 (6th Cir.1982). DISCUSSION The leading authorities on employee drug testing are Skinner v. Railway Labor Ex ecutives' Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). In Skinner, the Supreme Court upheld Federal Railroad Administration (“FRA”) regulations authorizing drug testing of employees without warrants or individualized suspicion when the employees were involved in train accidents or violated certain safety rules. While finding that mandatory urinalysis testing did constitute a search under the fourth amendment, the court stressed the important governmental interest at stake in monitoring railroad employees who are engaged in “safety-sensitive” tasks and whose duties are “fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences,” and held that the government interest justified the “privacy intrusions” even absent a warrant or individualized suspicion. Skinner, 489 U.S. at -, 109 S.Ct. at 1415, 1419, 103 L.Ed.2d at 662, 667. The court also found that railroad employees had a diminished expectation of privacy respecting information pertaining to their fitness. In Von Raab, a case decided on the same day as Skinner, the court upheld urinalysis testing on United States Customs Service employees who sought transfer or promotion to positions which directly involved the interdiction of illegal drugs or required the carrying of a firearm. Again the court employed a balancing test and supported the government’s need to conduct warrant-less and suspicionless searches of employees engaged directly in drug interdiction or otherwise required to carry a firearm. The court also noted “that certain forms of public employment may" }, { "docid": "15103703", "title": "", "text": "Transportation] motor vehicle operators, who are responsible for, inter alia, the transportation of visiting foreign dignitaries and key Department officials and the operation of passenger-laden shuttle buses. Shuttle buses transport as many as 1,200 passengers each day. Thus, obvious safety interests support the testing of the majority of the Department’s motor vehicle operators. 885 F.2d at 892 (citations omitted). Safety interests alone were not sufficient to validate random testing of DOT mail van operators, but the court found that strong national security concerns supported testing of these employees. Id. at 892-93. The procedures for random testing of FNS drivers are identical in relevant respects to those at issue in AFGE v. Skinner, as both USDA and DOT follow drug testing regulations issued by the Department of Health and Human Services. See AFGE v. Skinner, 885 F.2d at 887; U.S. Dep’t of Agric., Drug-Free Workplace Program § 13-1(A); see also Mandatory Guidelines for Federal Workplace Drug Testing Programs, 53 Fed.Reg. 11,970 (1988). Thus, only the specific duties of FNS and DOT drivers and differences in reasonable privacy expectations between the two groups might justify different outcomes. NTEU stresses that whereas DOT motor vehicle operators routinely drove shuttle-buses, FNS drivers primarily chauffeur officials and deliver documents, with shuttle responsibilities limited to filling in for a private bus driver during lunch hours and sick days. From this the union concludes that the government’s safety interest is so much weaker here than in AFGE v. Skinner that the constitutional balance tips against testing. But in AFGE v. Skinner the court considered DOT’S safety interest in testing its drivers “obvious,” 885 F.2d at 892, a characterization that should discourage line-drawing based upon the number of passengers carried in an average day. And in Jones v. McKenzie, 833 F.2d 335 (D.C.Cir.1987), vacated sub nom. Jenkins v. Jones, 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149, modified, 878 F.2d 1476 (D.C.Cir.1989), this court upheld urinalysis drug testing of school bus attendants as well as drivers, refusing to draw a relevant distinction between the two groups: While the safety concern may be somewhat greater for a school" }, { "docid": "15700205", "title": "", "text": "the individual’s privacy interest. If the government’s interest is sufficiently compelling to justify an intrusion, without individualized suspicion, on an individual’s reasonable expectation of privacy, then the search is allowable under the Fourth Amendment. See, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). In circumstances “where the government seeks to prevent the development of hazardous conditions or to detect violations that rarely generate articulable grounds for searching any particular place or person” the requirement for individualized suspicion may be relaxed. Id. at 668, 109 S.Ct. at 1392. It is now well settled that compelled collection of bodily fluids or breath samples for testing for drugs or alcohol constitutes a search for Fourth Amendment purposes. Skinner, 489 U.S. at 616-618, 109 S.Ct. at 1412-14. A requirement of individualized suspicion is obviously not satisfied in a random testing program. To determine whether the relaxation of the individualized suspicion requirement is proper in this ease I must weigh the employees’ reasonable expectation of privacy against the governmental interest that is served by the intrusion. In the two leading Supreme Court eases considering, under Fourth Amendment jurisprudence, drug and alcohol testing of employees, the Court found two governmental interests compelling enough to allow testing without individualized suspicion: maintenance of a workforce of fit employees with “unimpeachable integrity and judgment,” and enhancement of public safety. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 670, 109 S.Ct. 1384, 1393, 103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executives’ Assoc., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The Court did not, however, cast a wide net and hold that a general interest in workforce integrity or public safety was sufficient to eliminate a requirement of individualized suspicion. These governmental interests were tied to the “operational realities of the workplace.” Ortega, 480 U.S. at 717, 107 S.Ct. at 1497. Nor did the Court “[make an] effort to articulate an analytical rule by which legitimate drug-testing programs could be distinguished from illegitimate ones.” Harmon v. Thornburgh, 878 F.2d 484, 488 (D.C.Cir.1989), cert. denied, 493 U.S." }, { "docid": "10805517", "title": "", "text": "or some level of individualized suspicion in the particular context.” Von Raab, 489 U.S. at 665-66, 109 S.Ct. 1384. Thus, even where the government asserts important interests, it must still demonstrate an immediate threat to those interests that could not practically be addressed through a suspicion-based approach in order to justify a suspicionless search under the Fourth Amendment. See Vernonia, 515 U.S. at 662-63, 115 S.Ct. 2386. A substantial body of precedent elucidates the relevant considerations. The Supreme Court has found “compelling,” in view of documented problems, the governmental interest in ensuring public safety in railroad travel, Skinner, 489 U.S. at 620-21, 628, 634, 109 S.Ct. 1402, the “national interest in self-protection” against the importation of illegal drugs, and the public interest in preventing the promotion of potentially judgment-impaired employees to “positions where they may need to employ deadly force,” Von Raab, 489 U.S. at 670-71, 109 S.Ct. 1384. Central to these determinations were the magnitude and immediacy of the threats — the concern that “even a momentary lapse of attention [could] have disastrous consequences” for human lives and property. Von Raab, 489 U.S. at 670, 109 S.Ct. 1384; see Skinner, 489 U.S. at 628, 109 S.Ct. 1402. Similarly, this court has upheld the random drug testing of employees in “safety-sensitive” positions, such as those responsible for maintaining and operating trains, see BNSF Ry. Co. v. Dep’t of Transp., 566 F.3d 200, 206 (D.C.Cir.2009), airplanes, see Aeronautical Repair Station Ass’n, Inc. v. FAA 494 F.3d 161, 174 (D.C.Cir.2007); Am. Fed’n Gov’t Emps. v. Skinner, 885 F.2d 884, 892 (D.C.Cir.1989) (“AFGE”); Cheney, 884 F.2d at 610, and motor vehicles, see Nat’l Treasury Emps. Union v. Yeutter, 918 F.2d 968, 971-72 (D.C.Cir.1990); AFGE, 885 F.2d at 892, as well as those required to carry firearms in the performance of their duties, see Cheney, 884 F.2d at 612. In the context of hazardous material inspection, this court concluded that the government’s efforts to ensure that employees “whose exclusive assigned duties are [] intimately related to the prevention of public harm [ ] are eertifiably drug-free,” even by means of random drug testing, were" }, { "docid": "10805552", "title": "", "text": "the Fourth Amendment implications of government-mandated drug testing. The Supreme Court approved government-mandated drug testing without a warrant or individualized suspicion when the testing was motivated by a “special need” beyond the normal need for law enforcement and the government’s interest in testing outweighed the intrusion on individual privacy. Applying that fact-specific balancing test in a series of cases, the Supreme Court upheld drug testing of certain government employees, as well as drug testing of public school students who participate in athletics or other competitive extracurricular activities. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); Board of Education v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002); cf. Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). For its part, this Court upheld drug testing of government drug counselors; other courts of appeals similarly approved drug testing of public school teachers, other public school employees, and public correctional officers. See National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C.Cir.1989); Knox County Education Ass’n v. Knox County Board of Education, 158 F.3d 361 (6th Cir.1998); American Federation of Gov’t Employees v. Roberts, 9 F.3d 1464 (9th Cir.1993). II No Supreme Court case has addressed drug testing of public school teachers or other public school employees. This case likewise does not require us to resolve that broader question because this case raises a far narrower issue: drug testing of public employees at residential public schools for at-risk youth where many of the students have previously used drugs. Applying the Fourth Amendment’s reasonableness standard and the fact-specific balancing test set forth by the relevant precedents, I would uphold the Department of Agriculture drug testing program at issue in this case. The government has a strong interest in maintaining this narrowly targeted drug testing program. This limited program requires drug tests only for" } ]

[ { "docid": "10328505", "title": "", "text": "— i. e., rubbing Aladdin’s lamp brings forth not “genies” but “jinns.” Several of these underlying facts are clearly erroneous. Plaintiff does use a graphic representation of a lamp in conjunction with its corporate name — in evidence there are several specimens of plaintiff’s current advertising materials, each bearing the lamp. According to Webster’s Third New International Dictionary (1967) the words “genie” and “jinn” (and “djinn”) are synonyms; in fact the derivation of “genie” is shown as having been influenced by the Arabic word “jinniy,” meaning demon or spirit. Thus the court was incorrect in its idea that defendant’s “genie” is distinguishable from a “jinn” that might be associated with plaintiff’s effort to capitalize on Aladdin’s mythical lamp. The only testimony concerning the design of defendant’s lamp was that of defendant’s president. He did not testify that the representation of a lamp used by his corporation was designed to represent the lamp of knowledge and not the lamp of Aladdin, but rather that it varied from both the lamp of knowledge and the mythical Aladdin’s lamp and was “reversed to the other side” and with a different handle. We have examined the drawings showing defendant’s representation of a lamp and plaintiff’s representation of a lamp, and they are strikingly similar. Once these findings of fact are corrected, it becomes clear that plaintiff carried the burden of proving likelihood of confusion. Though the parties’ products might not compete directly, the evidence is clear that the marketing practices and advertising materials of plaintiff and defendant are sufficiently similar that a potential consumer would likely conclude that both products issued from the same source. This is the harmful confusion against which the trademark law protects. See Professional Golfers’Ass’n of America v. Bankers Life & Cas. Co., 514 F.2d 665 (CA5, 1975); American Foods, Inc. v. Golden Flake, Inc., 312 F.2d 619 (CA5, 1963). REVERSED and REMANDED for further proceedings not inconsistent with this opinion. . Plaintiff had charged unfair competition, but the court found that there was none because plaintiff stipulated that it had no evidence of lost sales or profits. This aspect" } ]

[ { "docid": "17784360", "title": "", "text": "this case use “America’s Team,” it is hard to plausibly suggest that the “overall impression” is very different. The use of stars in connection with America’s Team Properties’ merchandise, for instance on a baseball cap produced by the company, invokes even greater similarity. An analysis under this factor shows the two marks are strikingly similar, even if their usage is not identical. The similarity in the appearance and meaning of the marks shows prospective purchasers are likely to believe the parties are somehow associated. 3. Similarity of the Products or Services In evaluating the similarity of products or services, exact similarity is not required. “The greater the similarity between the products and services, the greater the likelihood of confusion.” Elvis Presley Enters., 141 F.3d at 202. There may be a likelihood of confusion even if the parties are not direct competitors. Id.; Professional Golfers Ass’n of America v. Bankers Life & Cas. Co., 514 F.2d 665, 669 (5th Cir.1975) (“This court has repeatedly held that direct competition is not the sine qua non of trademark infringement; rather the gist of the action lies in the likelihood of confusion to the public.”). A court may find similarity if a product falls within a senior user’s natural zone of expansion. See Westchester Media, 214 F.3d at 666-67. Plaintiffs’ evidence compares two baseball-style caps, one produced by Plaintiffs and the other by the Defendant. The Plaintiffs’ cap is blue and white with stars on the front and bill. A patch on the back contains another star and the words “America’s Team” over a truncated red, white, and blue American flag. “Dallas Cowboys” appears on the patch below the flag. Defendant’s cap is red and blue with white stars extending from the side down onto the bill. “America’s Team” is written in script on the front. Although the Plaintiffs’ cap is primarily blue and white and Defendant’s cap is primarily red and blue, both feature five-pointed stars on the bill, the words “America’s Team,” and the same overall color scheme. A consumer spending just a minute or two contemplating the purchase of a ball" }, { "docid": "4042434", "title": "", "text": "letter “Y” as compared to the “V” impression of the Levi design. However, absent any other markings, the marks are visually extremely similar and create “the same general overall impression.” RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1060 (2d Cir.1979); see also Universal City Studios v. Nintendo Co., 578 F.Supp. 911 (S.D.N.Y.), aff'd, 746 F.2d 112 (2d Cir.1984). In assessing similarity, however, the overall context in which the marks appear must be considered. McGregor-Doniger Inc. v. Drizzle, Inc., supra, 599 F.2d at 1133. Lois contends that because the products have additional markings attached, both permanently and at the point of sale, the marks are not similar given their “overall packaging -context.” Lever Brothers Co. v. American Bakeries Co., 693 F.2d 251, 257 (2d Cir.1982). According to Lois, the presence of this additional labelling serves to differentiate the marks and avoid any possibility of confusion. However, while this evidence of other indicia of origin may affect a determination of likelihood of confusion, see discussion, infra, since in certain cases courts have denied relief in infringement actions on the grounds, that “[t]he presence of [defendant's] name on the product goes far to eliminate confusion of origin,” Bose Corp. v. Linear Design Labs, Inc., 467 F.2d 304, 309 (2d Cir.1972), it does not render the relevant marks dissimilar. The settings in which each of the marks are used are essentially the same and do not color the impression created by each mark in a manner which differentiates them. Whether or not the manner in which each mark is presented, either in market conditions or post-sale, dispels any reasonable possibility that a consumer might be confused as to source, it does not affect the degree of similarity between the two arcuate designs. 3. Proximity of the Products and Bridging the Gap Although the marks in question appear on the same basic product, Lois contends that the products are non-competing and sold in dissimilar markets. As found above, the parties’ jeans are generally sold at disparate prices and in different stores. In addition, the advertising of each party is directed towards somewhat" }, { "docid": "7579202", "title": "", "text": "court stated in its permanent injunction opinion, “restricting comparison of the two marks to “Bee” and “B,” the non-generic terms of the trademarks, for purposes of determining both similarity and priority ... is contrary to logic and the prevailing authorities.” We believe the marks should be compared as composites for the purpose of determining the strength of the senior user’s mark. The long-standing view that the nongeneric components of a mark must be compared in the context of the overall composite mark, see 2 T. McCarthy, supra, § 23:15(G), at 89, remains the rule in this Circuit. Cf. American Cyanamid Corp. v. Connaught Laboratories, Inc., 800 F.2d 306, 309 (2d Cir.1986) (HibVAX does not infringe HIB-IMUNE because dissimilarity of suffixes offsets identity of prefixes); American Home Prods. Corp. v. Johnson Chem. Co., 589 F.2d 103, 107 (2d Cir.1978) (ROACH INN presents same concept to consumers as ROACH MOTEL). With this rule clarified, we nevertheless decline to disturb the district court’s finding that “Bee Wear” is a weak mark. We say this for three reasons. First, the finding that “Bee Wear” is weak is not clearly erroneous, despite the erroneous analysis of the component “Bee” viewed in isolation. Second, finding the mark strong, or somewhere between strong and weak, is not necessary for the district court’s ultimate holding of a likelihood of confusion between “Bee Wear” and “B Wear.” Finally, our expansion of the scope of the injunction does not depend on a finding that “Bee Wear” is a strong mark. For these reasons, the finding of the strength of plaintiffs mark remains intact. Similarity of the Marks As the district court recognized, the test for determining this factor is whether the labels create the “ ‘same overall impression’ ” when viewed separately. Paco Rabanne Parfums, S.A. v. Norco Enters., Inc., 680 F.2d 891, 893 (2d Cir.1982) (quoting RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1060 (2d Cir.1979)). It noted that the similarities between standard typ-estyle “B Wear” and “Bee Wear” are “so obvious and strong” that the marks clearly create the same overall impression to retail consumers." }, { "docid": "6827865", "title": "", "text": "However, consumer confusion within a particular market “in and of itself, does not establish that one party’s use of a name has given it secondary meaning.” Discount Muffler, 535 F.Supp. at 447. Cross-examination of witnesses who expressed some confusion revealed that they did not actually believe that “Taco Bell was making the same pizza as Pizzazz Restaurant,” Tr. at 116, or that they were unfamiliar with Taco Bell. See, e.g., Tr. at 123. Thus, plaintiffs have not shown that “pizzazz” was imbued with a secondary meaning exclusive to their product. Although plaintiffs registered their name in 1975 and have been using it for ten years, registration does not grant an exclusive right to use the name; registration does not enlarge one’s right to a trademark, which is derived from its use in connection with particular goods. Adams Baking Co. v. Interstate Bakeries Corp., 37 Ohio Misc. 79, 66 Ohio Op.2d 175, 307 NE 2d 273 (Ohio Com.Pl.1972). As earlier noted, the Secretary of State issued a trade name registration for “Pizza Pizzazz” to the Eads Corporation of Columbus, Ohio. Hence, the use of the mark for ten years in connection with plaintiffs’ pizza, while significant, does not prove that the term has acquired a secondary meaning. (2) Relatedness of the goods. A description and examination of the goods themselves shows virtually no similarity in taste or appearance between the products. The plaintiffs’ product is a traditional Italian-style pizza consisting of a bread-like dough spread with tomato sauce and covered with cheese and a variety of toppings. Defendant’s product is a variation on a Mexican tostada, consisting of two tortilla shells topped with cheese and pizza sauce. Plaintiffs’ product takes 15-20 minutes to prepare whereas defendant’s “pizza” is a fast-food item. Full inspection of the products (not simply limited views through advertising photographs) shows an insufficient degree of similarity to cause actual confusion. (3) Similarity of the marks. This factor is the only one of the eight Frisch’s factors which clearly weighs in plaintiffs’ favor. The “pizzazz” marks are identical in spelling and sound and both are applied to a pizza-like" }, { "docid": "22132181", "title": "", "text": "similar in appearance, with greater weight given to the dominant or salient portions of the marks. Id. at 1529-30, 1534-35. In this case, the dominant portion of the parties’ marks — “Lone Star” — is the same, causing a strong likelihood of confusion. Alpha’s coupons and advertisements also show “Lone Star” in larger lettering than the word “Grill,” further reinforcing the dominance of the mark “Lone Star.” These factors directly parallel our reasoning in Pizzeria Uno, in which we found that “Taco Uno” was confusingly similar to “Pizzeria Uno” in the restaurant field. Id. at 1534-36. In reaching this conclusion, we relied, in part, on the fact that the dominant portion of the mark — “Uno”— was displayed in larger lettering in the advertisements than the prefix “Pizzeria.” Id. at 1533. Regarding the third factor, the similarity of the goods and services that the marks identify, Alpha argues that the two restaurants are different because it serves primarily Tex-Mex food while Lone Star Steakhouse serves more traditional American fare, such as steaks, ribs, and chicken. Again, Pizzeria Uno is helpful in resolving this issue. In that case, this Court held that restaurants with greater differences in menu selection and atmosphere than those in this case were similar enough to cause a likelihood of confusion. In particular, the plaintiff in Pizzeria Uno offered Italian cuisine and a full bar in a sit-down restaurant while the defendant provided drive-through and counter service for Mexican fast food. Id. at 1535. In finding a likelihood of confusion, the court reasoned that “it is obvious that the products and services provided by the two companies serve the same purpose.” Id. The similarities in this case are even greater than those in Pizzeria Uno. Both Lone Star Steakhouse’s restaurants and Alpha’s Lone Star Grill have sit-down restaurants with full bar service, cater to the same customers, and have overlapping items on their menus. These similarities, especially the fact that their restaurant services attract many of the same customers, further work to satisfy the fourth factor, the similarity of the facilities the two parties use in their" }, { "docid": "9816336", "title": "", "text": "district court entertains a renewed motion for summary judgment on a considerably expanded record, this case should proceed to trial. The district court, relying éntirely on survey evidence, concluded that Plaintiffs’ trademark had acquired secondary meaning and was thus entitled to protection from domestic users. The survey population consisted of only 78 people in San Diego County who were “Spanish-speaking, and had recently purchased:-Mexican-style food at a supermarket or other food store.” Grupo Gigante S.A. de C.V. v. Dallo & Co., Inc., 119 F.Supp.2d 1083, 1093 (C.D.Cal.2000). Twenty-four respondents from that populátion “(1) had recently shopped at a Gigante store in México; (2) believed that the Gigante name- was affiliated with an entity that had at least one store located in-Mexico; or (3) were aware of a Gigante supermarket located in Mexico.” Id. However, the survey was conducted in 2000, nine years after Defendants first began using the Gigante name in the United States. When testing for awareness of the Gigante mark before Defendants’ entry into the San Diego market in 1991, the awareness level dropped to 20 to 22 percent of the respondents. Id. That is, the district court based its conclusion that Plaintiffs’ mark was well known on a survey that turned up just seventeen people who had heard of Gigante before 1991. That evidence is insufficient in two important respects. First, the survey result is highly questionable in view of its narrowly defined survey population. Plaintiffs’ own description of their stores makes clear that the goods sold are little different from those available in any large retail grocery store: “Product offerings in the Gigante stores generally include a complete selection of-perishable and non-perishable foods and a wide selection of general-merchandise, as well as clothing and fashion items.” Further, Plaintiffs admit in their briefs that the clientele of their Mexican stores includes “both Hispanic and non-Hispanic” customers. Consequently; nothing about either the nature of the goods sold by Plaintiffs or its customer base warrants limiting the relevant public to Mexican-Americans. We have rejected similar attempts to limit the relevant sector of the public. For instance, -in Japan Telecom," }, { "docid": "22163068", "title": "", "text": "likelihood of confusion among consumers: In AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir. 1979), we set forth eight factors that are relevant to the likelihood of confusion: 1. strength of the plaintiff’s mark; 2. relatedness of the goods; 3. similarity of the marks; 4. evidence of actual confusion; 5. marketing channels used; 6. likely degree of purchaser care; 7. defendant’s intent in selecting the mark; 8. likelihood of expansion of the product lines. Id. at 790. In considering these factors, the unique factual setting with which we are concerned militates strongly towards likelihood of confusion. Although the strength of the Big Boy mark was not addressed by the district court, we presume that it is a distinctive and desirable mark from Elby’s attempts to implant in the public mind the idea that all of its restaurants are affiliated with the Big Boy mark. The parties are competing restaurant chains using the identical trademark to promote related if not identical goods; additionally, it is likely that the marketing methods used to promote the fast-food products served by both chains are substantially similar. All these factors contribute to the likelihood of confusion about the Ohio Elby’s restaurants’ association with the Big Boy trademark. The district court determined that there was actual confusion among eastern Ohio consumers about the availability of Big Boy products at Ohio Elby’s restaurants. 514 F.Supp. at 708-09. This finding was supported by evidence from Frisch’s expert witness, who testified about a survey he conducted which indicated that Elby’s television advertisements contributed to confusion over the connection of the Big Boy organization with the Ohio Elby’s restaurants. The Fifth Circuit deduced that while “evidence of actual confusion is not necessary to a finding of likelihood of confusion, it is nevertheless the best evidence of likelihood of confusion.” Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 263 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980). The casual “degree of purchaser care” in selecting fast-food restaurants also supports a conclusion of likelihood of confusion. The “fast-food” products promoted by Elby’s" }, { "docid": "20359631", "title": "", "text": "style of the hang tags and labels which defendant uses is strikingly similar to that of plaintiff. Secondly, the fact that defendant used the word “Paris” on some of his labels is strong evidence of bad faith in light of the fact that his store does not have and has never had any affiliation with Paris. Finally, defendant’s explanation regarding his selection of the mark “Kikai” appears nowhere in his affidavit and was asserted for the first time at the hearing. Thus, the court finds that there is enough evidence of bad faith to weigh this factor in favor of plaintiff. 7. The Quality of Plaintiffs Product This factor centers on whether “the good reputation associated with [plaintiffs] mark” could be “tarnished by [the] inferior merchandise of the [defendant].” WWW Pharmaceutical v. Gillette Co., 984 F.2d 567, 575 (2d Cir.1993) (citations omitted). Although plaintiff insists that defendant’s goods are of inferior quality, it has produced no reliable evidence in support of this claim. Furthermore, the products from each party submitted to the court as exhibits do not appear to be of differing quality. Accordingly, the court finds that this factor weighs in favor of defendant. 8. The Sophistication of Purchasers The final Polaroid, factor which must be considered is the sophistication of purchasers. In the words of the Second Circuit, “[t]he general impression of the ordinary purchaser, buying under the normally prevalent conditions of the market and giving the attention such purchasers usually give in buying that class of goods, is the touchstone.” McGregor-Doniger, 599 F.2d at 1137. Courts presume that more sophisticated purchasers are less likely to be misled or confused even if a party uses a mark similar to that of a competitor. Thus, purchasers of fruit punch are not sophisticated and would not carefully discriminate between confusingly similar marks on different brands because of the product’s “modest cost.” RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1061 (2d Cir. 1979). On the other hand, retail purchasers are more sophisticated and are not as likely to be confused by similar marks. Sally Gee, Inc. v. Myra" }, { "docid": "1286883", "title": "", "text": "found that the services performed by the two parties were not totally unrelated, and it noted that other cases had held that supermarket services or food items were related to cafeteria or restaurant services. See, e.g., In re H.J. Seiler Co., 289 F.2d 674, 48 C.C.P.A. 1001 (CCPA 1961); In re Pick-N-Pay Supermarkets, Inc., 185 USPQ 172 (TTAB 1974). The record shows that there are certain items sold by both parties under their respective marks. For example, both sell hot dogs and bakery goods in their establishments. Op-poser sells sandwiches and prepared foods in its delicatessen section, while applicant sells hamburgers. Opposer sells meats and condiments that can be used in hamburgers and hot dogs, while applicant uses similar items in preparing its hamburger and hot dog sandwiches. While we recognize that the average consumer makes a distinction between fast-food restaurants and supermarkets, we are satisfied that, if the marks themselves are confusingly similar, customers of the fast-food restaurant would be likely to believe that opposer owned, sponsored, or supplied that business. In re H.J. Seiler, supra. This brings us to a consideration of another important factor in this case, i.e., the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. We note at the outset that in viewing the marks as a whole, there is one portion that is clearly dominant in each. That dominant portion is the word GIANT. In both oppo-ser’s and applicant’s marks, that word is written in capital letters across the middle of the design. In each mark, it is larger than any other word that appears on the mark. One observing applicant’s mark from a distance would see the word GIANT long before he saw the word HAMBURGERS, and possibly before he could recognize that there was a hamburger design. From a distance, both marks reveal a word written across a circular or oval-shaped object. In both marks the “G” and the “T” of GIANT are located partially outside of the oval or circular portion of the designs. In its application to the Patent and Trademark" }, { "docid": "17784358", "title": "", "text": "marketplace as a designator of plaintiffs goods or services.” Id. The parties agree that the Cowboys’ “America’s Team” mark.is not fanciful or arbitrary. As noted, the Court finds the mark is somewhat suggestive and has definitely acquired secondary meaning. Thus, Plaintiffs’ mark is relatively strong. 2. Similarity between the Two Marks The degree of similarity between marks “is determined by comparing the marks’ appearance, sound, and meaning.” Elvis Presley Enters., 141 F.3d at 201. “Even if prospective purchasers recognize that the two designations are distinct, confusion may result if purchasers are likely to assume that the similarities in the designations indicate a connection between the two users.” Id. Thus, “[t]he relevant inquiry is whether, under the circumstances of the use, the marks are sufficiently similar that prospective purchasers are likely to believe that the two users are somehow associated.” Id. When comparing marks, “it is the overall impression that counts,” Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496, 502 (5th Cir.1979), “rather than simply comparing individual features of the marks,” Exxon Corp. v. Tex. Motor Exch. of Houston, Inc., 628 F.2d 500, 505 (5th Cir.1980). “Of course, few would be stupid enough to make exact copies of another’s mark or symbol. It has been well said that the most, successful form of copying is to employ enough points of similarity to confuse the public with enough points of difference to confuse the courts.” Baker v. Master Printers Union of N.J., 34 F.Supp. 808, 811 (D.N.J.1940). The two marks contain the identical wording: “America’s Team.” Defendant counters that the Cowboys’ use of the mark includes the use of a star logo and the words “Dallas Cowboys,” thereby distinguishing the two marks. Yet in the World Carpets case, the inclusion of the word “World” in the two marks did not make them substantially similar. World Carpets, 597 F.2d at 502. In the same vein, if the marks here both only contained the word “America” there would be no substantial similarity on that basis. For instance, “America’s Team” is very different from, say, “Bank of America.” But because both marks in" }, { "docid": "13725791", "title": "", "text": "plaintiff’s exact name unquestionably gives rise to a legal presumption that the similarity will cause consumer confusion.” Parrot Jungle, 512 F.Supp. at 270, quoting RJR Foods Inc. v. White Rock Corp., 603 F.2d 1058, 1060 (2d Cir.1979). In any event, as detailed in the Findings of Fact, comprehensive evaluation of each Polaroid factor leads to the inevitable conclusion that the “Marketing Week” mark, as it presently appears on defendant’s magazine, is likely to mislead and confuse an appreciable number of ordinarily prudent purchasers. (1) The Strength of the Mark As a descriptive mark, “Marketing Week” cannot attain the comparable strength of a more fanciful or arbitrary mark. See 20th Century Wear, Inc., 747 F.2d at 87. However, plaintiff’s long, continuous and exclusive use of the mark for its magazine, the magazine’s worldwide circulation of over 36,000, and the tendency of purchasers to associate the magazine as emanating from a particular source, establish that plaintiff’s mark has achieved a position of relative strength. (2) The Degree of Similarity Between the Two Names Although defendant purports to use the name “Adweek’s Marketing Week,” it is clear to the Court that upon viewing the cover of defendant’s publication, an ordinarily prudent purchaser would conclude that the name of the publication is “Marketing Week,” the exact same name as plaintiff’s publication. The reference to “Adweek” on the cover is obscured in diminished lettering, occupying a significantly and materially lesser percentage of the entire logo, leaving the prominent display of MARKETING WEEK indistinguishable from plaintiff’s mark when looked at by an ordinary viewer. The initial cover announcing the change in the name of defendant’s publication contains a sharply scaled down version of the logo in which a reader practically needs a magnifying glass to clearly perceive the word “Adweek’s.” Defendant’s extensive solicitations for subscriptions to its newly-titled publication expressly referred to the magazine as MARKETING WEEK, and left out the prefix “Adweek’s” in its entirety. As used by the parties, the two names at issue attain the highest degree of similarity, and at are times identical. (3) The Proximity and Quality of the Products Not" }, { "docid": "3859527", "title": "", "text": "direct competition, and that Stouffer has presented no evidence of actual consumer confusion. The parties dispute the similarity of the marks, predatory intent, and the implications of the type of product and conditions of purchase on the likelihood of confusion. We address each of these factors separately. Stouffer argues that Lean Cuisine and Lean ’N Tasty are confusingly similar because they both mean “dietary but tasty.” The use of identical dominant words does not automatically mean that two marks are similar, however. General Mills, Inc. v. Kellogg Co., 824 F.2d 622, 627 (8th Cir.1987) (determining that Oatmeal Raisin Crisp and Apple Raisin Crisp are not confusingly similar). We must look to the overall impression created by the marks, not merely compare individual features. Id. We may consider the marks’ visual, aural, and definitional attributes and compare the trade dress of the products in determining whether the total effect conveyed by the two marks is confusingly similar. See id. (approving the district court’s consideration of these factors). With the exception of the word “lean,” which is generally descriptive of food and not registerable as a trademark, the two marks look and sound different. Webster’s Third New International Dictionary (1986) defines “cuisine” as “manner of preparing food” or “style of cooking,” and defines “tasty” as “pleasing to the taste” or “savory.” Additionally, “cuisine” and “tasty” are not so alike in form, spelling, sound, and meaning that when used on identical goods, an ordinary consumer is likely to be confused or misled as to the difference between them. Cf. Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 926 (10th Cir.1986) (finding Beer Nuts and Brew Nuts to be confusingly similar because “beer” and “brew” are both one-syllable words beginning with “b,” three of four letters of which are identical, and because the word “brew,” when used on a package depicting an overflowing beer stein, means “beer”); General Foods Corp. v. Borden, Inc., 191 U.S.P.Q. 674, 680 (N.D.Ill.1976) (holding County Prize and Country Time to be confusingly similar); H. Sichel Sohne, GmbH v. Michel Monzain Selected Wines, Inc., 202 U.S.P.Q. 62," }, { "docid": "13725790", "title": "", "text": "two marks, (3) the proximity of the products, (4) the likelihood that the prior owner may bridge the gap, (5) any evidence of actual confusion, (6) the defendant’s good or bad faith in using the mark, (7) the quality of defendant’s product, and (8) the sophistication of the purchasers. Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961); see Beneficial Corp. v. Beneficial Capital Corp., 529 F.Supp. 445, 448 (S.D.N.Y.1982); Information Clearing House v. Find Magazine, 492 F.Supp. 147, 154-55 (S.D.N.Y.1980). Defendant’s intentional and deliberate use of the “Marketing Week” mark dominantly emblazoned on its magazine, with full and prior knowledge of plaintiff’s publication provides strong if not conclusive evidence of the likelihood of confusion. “If there was intentional copying the second comer will be presumed to have intended to create a confusing similarity of appearance and will be presumed to have succeeded.” Perfect Fit Industries, Inc. v. Acme Quilting Co., 618 F.2d 950, 954 (2d Cir.1980). “[Deliberate use of plaintiff’s exact name unquestionably gives rise to a legal presumption that the similarity will cause consumer confusion.” Parrot Jungle, 512 F.Supp. at 270, quoting RJR Foods Inc. v. White Rock Corp., 603 F.2d 1058, 1060 (2d Cir.1979). In any event, as detailed in the Findings of Fact, comprehensive evaluation of each Polaroid factor leads to the inevitable conclusion that the “Marketing Week” mark, as it presently appears on defendant’s magazine, is likely to mislead and confuse an appreciable number of ordinarily prudent purchasers. (1) The Strength of the Mark As a descriptive mark, “Marketing Week” cannot attain the comparable strength of a more fanciful or arbitrary mark. See 20th Century Wear, Inc., 747 F.2d at 87. However, plaintiff’s long, continuous and exclusive use of the mark for its magazine, the magazine’s worldwide circulation of over 36,000, and the tendency of purchasers to associate the magazine as emanating from a particular source, establish that plaintiff’s mark has achieved a position of relative strength. (2) The Degree of Similarity Between the Two Names Although defendant purports to" }, { "docid": "13785922", "title": "", "text": "public will find the LONE STAR STEAKS mark confusingly similar to LSS & S’s LONE STAR CAFE mark. In determining the likelihood of confusion between the two marks, we require a district court to analyze the following seven factors: (1) type of mark, (2) similarity of mark, (3) similarity of the products the marks represent, (4) similarity of the parties’ retail outlets and customers, (5) similarity of advertising media used, (6) defendant’s intent and (7) actual confusion. Dieter v. B & H Industries of Southwest Florida, Inc., 880 F.2d 322, 326 (11th Cir.1989); Freedom Sav. and Loan Ass’n v. Way, 757 F.2d 1176, 1182 (11th Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 134, 88 L.Ed.2d 110 (1985). Of these seven factors, we consider the type of mark and the evidence of actual confusion to be the two most important factors. Dieter, 880 F.2d at 326. In reviewing the evidence, there are no set rules as to how much evidence of confusion is needed; rather, a district court “must take into consideration the circumstances surrounding each particular case.” Id. at 326 n. 3 (citing Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d 833, 844 (11th Cir.1983)). In the case before us, the district court did not make an explicit ruling regarding the likelihood of confusion between the two marks. The district court merely stated that it was “not convinced that the LONE STAR STEAKS mark and the LONE STAR CAFE mark were confusingly similar.” R448-4. Although the district court was uncertain whether the marks were confusingly similar, there is evidence in the record to suggest that the two marks did cause some actual consumer confusion, see R5-68-2-4 (affidavit of the general manager of Lone Star Cafe restaurant noting two specific instances of customer confusion), both restaurants utilize the same words “LONE STAR” in their restaurants’ names, and both serve a similar type of food, Texas cuisine. Because the law of this circuit requires a district court to fully consider the seven factors listed above in determining the likelihood of confusion between two marks and because from the record" }, { "docid": "4609592", "title": "", "text": "Plaintiff admits that the generally recognized meanings of the words are different, with the only such connection being that “casque” is an obsolete definition of the word “cask” according to Webster’s Unabridged Dictionary. Even here, plaintiff may be correct in suggesting that the public is reasonably likely to understand the word CASQUE to be a foreign or stylistic variation of the word CASK. See, e.g., Apple Computer, supra, 725 F.2d at 526 — a slight change in plaintiff’s mark may suggest to the public that defendant’s goods were “manufactured by licensees or subsidiaries” of plaintiff, especially when used on related goods (“Pineapple” was found to be confusingly similar to “Apple” for computer programs). As plaintiff further points out, such an interpretation by the public is reinforced by the strong similarity in the restaurants’ architectural styles, infra. Even relying solely upon sound, similarity of the marks THE CASQUE and CASK seems quite evident. However, due to a strong showing that the parties’ goods are closely related (discussed infra), “a diminished standard of similarity must be applied when comparing the two marks.” See AMF, Inc., supra, 599 F.2d at 350. For related goods, the danger presented is that the public will mistakenly assume there is an association between the producers of the related goods, though no such association exists. [Citation]. The more likely the public is to make such an association, the less similarity in the marks is requisite to a finding of likelihood of confusion. [Citation]. Thus, less similarity between the marks will suffice when the goods are complementary, [citations], the products are sold to the same class of purchasers, [citation], or the goods are similar in use and function. Id. (2) Although evidence of actual confusion is difficult to produce, see Golden Door, 646 F.2d 347, 351 (9th Cir.1980) plaintiff has produced strong evidence that consumers at various times thought they were eating at a restaurant associated with the CASK ’N CLEAVER chain. Plaintiff sells gift certificates which are redeemable at all CASK ’N CLEAVER restaurants, and evidently people have been presenting them for payment at defendants’ restaurant. Perhaps such" }, { "docid": "22163069", "title": "", "text": "the fast-food products served by both chains are substantially similar. All these factors contribute to the likelihood of confusion about the Ohio Elby’s restaurants’ association with the Big Boy trademark. The district court determined that there was actual confusion among eastern Ohio consumers about the availability of Big Boy products at Ohio Elby’s restaurants. 514 F.Supp. at 708-09. This finding was supported by evidence from Frisch’s expert witness, who testified about a survey he conducted which indicated that Elby’s television advertisements contributed to confusion over the connection of the Big Boy organization with the Ohio Elby’s restaurants. The Fifth Circuit deduced that while “evidence of actual confusion is not necessary to a finding of likelihood of confusion, it is nevertheless the best evidence of likelihood of confusion.” Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 263 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980). The casual “degree of purchaser care” in selecting fast-food restaurants also supports a conclusion of likelihood of confusion. The “fast-food” products promoted by Elby’s are not likely to be the object of intensive consumer research, but rather subject to “impulse buying;” therefore, it is highly unlikely that Ohio consumers will discover their mistake about the availability of Big Boy products in Ohio Elby’s restaurants before patronizing Elby’s. The Fifth Circuit’s comments on the intent factor are equally supportive of likelihood of confusion: Intent: we stated in Amstar that the “intent of defendants in adopting [their mark] is a critical factor, since if the mark was adopted with the intent of deriving benefit from the reputation of [the plaintiff,] that fact alone may be sufficient to justify the inference that there is confusing similarity.\" Amstar Corp., supra, 615 F.2d at 263 (emphasis added). Chevron Chemical Co., supra at 703-04. The district court found that “the defendants intentionally associate Ohio Elby’s res taurants with the ‘Big Boy’ mark,” since “the Ohio Elby’s restaurants are in fact direct participants in the reciprocal advertising agreement with WTRF,” they “actively encourage Ohio consumers to ‘watch for Elby’s specials on WTRF’ . . . where" }, { "docid": "22144693", "title": "", "text": "no secondary meaning for its mark, the district court had in effect held the plaintiff’s trademark invalid as descriptive. It did discuss other factors, though it cannot be said that its decision turned on its consideration of these factors. Nor do we think such factors particularly material to the resolution of this case. Because the district court discussed them, however, we consider them. The first of these other factors was the similarity of the two marks. Admittedly, the dominant word in both marks in this case is “Uno.” This identity of the dominant term in both marks is a strong indicator of that similarity in appearance and sound which would result in confusion. Such conclusion that there was likelihood of confusion based on similarity of the two marks is supported by the decision in Clinton Detergent Co. v. Procter & Gamble Co., 302 F.2d 745, 746-47, 49 CCPA 1146 (1962). The two marks in that case were Joy dish detergent (senior product) and Carjoy car cleaner. The court found such similarity as to create the likelihood of confusion. As in Clinton, there is in this case a similarity between one word in each of the marks and it is the dominant word in both. Both Pizzeria and Taco are admittedly descriptive words, indicative of a food connection but it is the dominant word “Uno” that is the distinctive word and the word which has meaning and distinction for the customer. All of this points to the manifest conclusion that there may well be such similarity of mark as to give rise to a likelihood of confusion between the two. A third factor considered by the district court under the formula for finding likelihood of confusion was similarity of services and facilities. In that connection, it is obvious that the products and services provided by the two companies serve the same purpose. One offers Italian cuisine, and full bar, in a sit-down restaurant. The other offers drive-through and counter service for Mexican fast food. In Clinton, 302 F.2d at 748, the court found that the two products in question, car detergent" }, { "docid": "15963439", "title": "", "text": "mark THE DAILY CATCH in connection with its restaurant services. 2. Likelihood of Confusion The key element in any infringement action is likelihood of confusion. Purolator, Inc. v. EFRA Distributors, Inc., 687 F.2d 554, 559 (1st Cir.1982). Under First Circuit case law, this Court must look to eight factors is assessing the likelihood of confusion: (1) the similarity of the marks; (2) the similarity of the goods or services; (3) the relationship between the parties’ channels of trades; (4) the relationship between the parties’ advertising; (5) the classes of prospective purchasers; (6) evidence of actual confusion; (7) the defendants’ intent in adopting the mark; and (8) the strength of the mark. Volkswagenwerk, 814 F.2d at 817; Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 486-87 (1st Cir.1981) (“Pignons”). No one factor is determinative, but each must be considered. Id. The Court will address each of the factors in the order named as applied to the facts of this case. a. Similarity of the Marks. Similarity of the marks is determined on the basis of the total effect of the designation, rather than a comparison of individual features. Volkswagenwerk, 814 F.2d at 817. Marks may be recognized as similar based on sight, sound and meaning. Id. Similarity of the marks must be considered in light of what occurs in the marketplace, taking into account the “circumstances surrounding the purchase of the goods” or services. Alpha Industries, Inc. v. Alpha Steel Tube & Shapes, Inc., 616 F.2d 440, 444 (9th Cir.1980). Although similarity is measured by the marks as entities, similarities weigh more heavily than differences. Id. Here, both parties use three-word marks which begin with the word “The,” end with the word “Catch,” and contain a two-syllable modifying term in the middle of the mark. The marks have the same sound and cadence. Cf. Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 926 (10th Cir.1986) (“Beer Nuts”) (“Brew Nuts” and “Beer Nuts” were held to be similar marks in part because the words “Brew” and “Beer,” although “not identical, ... have a similar sound”);" }, { "docid": "1286882", "title": "", "text": "in the Washington, D.C.Virginia-Maryland area in 1980 were in excess of one billion dollars, as noted above. It has enjoyed considerable exposure through the media, having been featured on national television as well as locally. Its mark is displayed prominently on a large variety of grocery products. The evidence as a whole strongly indicates that opposer’s mark is well known in its area of operation and that consumers associate the words GIANT and GIANT FOOD with opposer’s business activities. The TTAB has made findings to this effect in two prior cases. See Giant Food, Inc. v. Rosso and Mastracco, Inc., ___ USPQ ___ (TTAB 1982); Giant Food, Inc. v. Malone & Hyde, Inc., 178 USPQ 246, 249 (TTAB 1973), rev’d on other grounds, 522 F.2d 1386 (Cust. & Pat.App.1975). We hold that opposer’s marks have acquired considerable fame, which weighs in its favor in determining likelihood of confusion. Another factor to consider under Du Pont is the similarity or dissimilarity and nature of the goods and services on which the marks are used. The TTAB found that the services performed by the two parties were not totally unrelated, and it noted that other cases had held that supermarket services or food items were related to cafeteria or restaurant services. See, e.g., In re H.J. Seiler Co., 289 F.2d 674, 48 C.C.P.A. 1001 (CCPA 1961); In re Pick-N-Pay Supermarkets, Inc., 185 USPQ 172 (TTAB 1974). The record shows that there are certain items sold by both parties under their respective marks. For example, both sell hot dogs and bakery goods in their establishments. Op-poser sells sandwiches and prepared foods in its delicatessen section, while applicant sells hamburgers. Opposer sells meats and condiments that can be used in hamburgers and hot dogs, while applicant uses similar items in preparing its hamburger and hot dog sandwiches. While we recognize that the average consumer makes a distinction between fast-food restaurants and supermarkets, we are satisfied that, if the marks themselves are confusingly similar, customers of the fast-food restaurant would be likely to believe that opposer owned, sponsored, or supplied that business. In re H.J." }, { "docid": "22144694", "title": "", "text": "likelihood of confusion. As in Clinton, there is in this case a similarity between one word in each of the marks and it is the dominant word in both. Both Pizzeria and Taco are admittedly descriptive words, indicative of a food connection but it is the dominant word “Uno” that is the distinctive word and the word which has meaning and distinction for the customer. All of this points to the manifest conclusion that there may well be such similarity of mark as to give rise to a likelihood of confusion between the two. A third factor considered by the district court under the formula for finding likelihood of confusion was similarity of services and facilities. In that connection, it is obvious that the products and services provided by the two companies serve the same purpose. One offers Italian cuisine, and full bar, in a sit-down restaurant. The other offers drive-through and counter service for Mexican fast food. In Clinton, 302 F.2d at 748, the court found that the two products in question, car detergent and dish detergent, although intended for different purposes, could be used for the same purpose, and that the purposes were related. Since the goods were also sold through the same retail outlets to the same customers, the court found that the goods were similar. Here, the restaurants of both the plaintiff and the defendant are designed to serve the same purpose. If the Clinton court could find similarity because a dish detergent could be used to wash ears and a car cleaner to wash dishes, we think by the same token, similarity of services should be found here, too, both parties operate restaurants and are in food service. In a case brought under the predecessor to the Lanham Act, Judge Learned Hand noted that only where the junior user’s use is “so foreign to the owner’s as to insure against any identification of the two,” is use of a mark by a junior user legal. Yale Electric Corporation v. Robertson, 26 F.2d 972, 974 (2nd Cir.1928). He also said in that case: “However, it has" } ]

[ { "docid": "22597690", "title": "", "text": "3095. The opinion does not suggest that the standard police procedures were reflected in a pre-existing formalized policy, written or oral. In a concurring opinion Justice Powell, relying on the administrative search and roadblock exceptions to the warrant requirement an- nouneed in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), stressed that when inventory searches are conducted in accordance with established police department rules or policy the officer does not make a discretionary, and perhaps arbitrary determination to search. Id. 428 U.S. at 383, 96 S.Ct. at 3104. More recently, in Colorado v. Bertine, 107 S.Ct. at 744, Justice Blackmun, concurring in a judgment upholding an inventory search, made the same point, writing: The underlying rationale for allowing for an inventory exception to the Fourth Amendment warrant rule is that police officers are not vested with discretion to determine the scope of an inventory search. This absence of discretion ensures that inventory searches will not be used as a purposeful and general means of discovering evidence of crime. Thus, it is permissible for police officers to open closed containers in an inventory search only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle. Bertine, 107 S.Ct. at 744 (Blackmun, J., concurring) (citation omitted). In Opperman, Lafayette and Bertine there was evidence of pre-existing police practice. No Supreme Court case has ever held an inventory search invalid because of the absence of formalized pre-existing standards. In Bertine, however, probably in response to Justice Blackmun’s concurring opinion, the opinion of the Court notes: We emphasize that, in this case, the trial court found that the police department’s procedures mandated the opening of closed containers and the listing of their contents. Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria. See Lafayette, 462 U.S. at 648, 103 S.Ct. at 2610; Opperman, 428 U.S. at 374-357, 96 S.Ct. at 3099-3100. Bertine, 107 S.Ct. at 742, n. 6." } ]

[ { "docid": "22860473", "title": "", "text": "determine the scope of the inventory search. This absence of discretion ensures that inventory searches will not be used as a purposeful and general means of discovering evidence of crime. Thus, it is permissible for police officers to open closed containers in an inventory search only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle. 479 U.S. at 376-77, 107 S.Ct. at 744 (concurrence). . The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . There is no requirement that an inventory search must conform to the least intrusive means available. See Bertine, 479 U.S. at 375, 107 S.Ct. at 743; Lafayette, 462 U.S. at 647-48, 103 S.Ct. at 2610; United States v. Johnson, 815 F.2d at 314. The inventory must not, however, depart from its underlying justification and become a pretext for investigatory rummaging. . The facts of the instant case differ from those of United States v. Iredia, 866 F.2d 114 (5th Cir.), cert. denied, - U.S. -, 109 S.Ct. 3250, 106 L.Ed.2d 596 (1989) and United States v. Arango-Correa, 851 F.2d 54 (2d Cir.1988). In Iredia, an address book was seized from the arrestee's car. The address book, in plain view, was identified as an item of evidentiary value during the legal warrantless investigative search at the time the automobile was initially searched. Accordingly, its seizure at the time of the inventory was proper. The fact that the police waited until the car had been impounded to seize the notebook and log it into the \"evidence inventory\" was not improper. In Arango-Correa, the Second Circuit held that the police were permitted to open closed notebooks pursuant to an inventory search. We agree. So long as investigative officers are acting pursuant to standardized procedures and must examine closed books for hidden items, the inventory search is proper. Indeed, in the instant case, the officer’s initial inventory inspection of the notebook was proper. The subsequent" }, { "docid": "11494651", "title": "", "text": "Sixth Amendment violation and the district court did not err in admitting the evidence. III. Warrantless Search of Bullock’s Car at Arrest Bullock complains that the district court erred in admitting the evidence found during the warrantless search of his car. During the search, the police found approximately $900 in cash and a .22 caliber Ruger revolver. Warrantless searches are presumptively unreasonable. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2305-06, 110 L.Ed.2d 112 (1990). However, there is an exception to the warrant requirement when an officer conducts an inventory of seized property if that inventory is part of a bona fide “routine administrative earetaking function” of the police. United States v. Skillern, 947 F.2d 1268, 1275 (5th Cir.1991), cert. denied, 503 U.S. 949, 112 S.Ct. 1509, 117 L.Ed.2d 646 (1992). Inventories serve three purposes: (1) to protect the owner’s property while it is in police custody; (2) to protect the police against claims or disputes over lost or stolen property; and (3) to protect the police or public from potential danger. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976). The Fourth Amendment requires only that an inventory not be a “ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); United States v. Walker, 931 F.2d 1066, 1068 (5th Cir.1991). “In order to prevent inventory searches from concealing such unguided rummaging, Supreme Court has dictated that a single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” Walker, 931 F.2d at 1068 (internal quotation omitted). The Supreme Court requires that “inventories be conducted according to standardized criteria,” although the policy need not be written. Id. at 1068-69. Bullock argues that the officer who searched his vehicle did not testify that there were any standards regarding inventory searches. Bullock claims that the officer’s testimony was merely “affirmations in response to the prosecutor’s questions.”" }, { "docid": "23066798", "title": "", "text": "their motives in doing so are irrelevant and hence not subject to inquiry.” Id. B. The Search of the Box. Gallo next contends that the warrantless search of the box found in his car violated the fourth amendment. Apparently, Gallo is arguing that the district court erred by not suppressing the evidence discovered in this search. The Government contends that this search was justified as an inventory search or search incident to arrest. The district court found that this was a valid inventory search that conformed to the HPD’s inventory procedures. In reviewing the district court’s ruling on a motion to suppress based on live testimony at a suppression hearing, we must accept the district court’s factual findings unless they are clearly erroneous or influenced by an incorrect view of the law. United States v. Muniz-Melchor, 894 F.2d 1480, 1433 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990) (quoting United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984)). Therefore, we must accept the district court’s finding that the HPD inventory procedure allowed HPD to open the box to check for valuable or dangerous items. However, we must apply a de novo standard of review to determine whether this was a valid inventory search. Id. When a car is impounded, the police generally inventory its contents to protect the owner’s property while it is in police custody, to protect the police against claims of lost or stolen property, and to protect the police and the public from potential danger. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976). However, to prevent the police from conducting inventory searches as a ruse for general rummaging to discover incriminating evidence, standardized criteria or established routine must regulate the opening of containers found during inventory searches. Florida v. Wells, — U.S. -, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990). The police department’s inventory procedures can allow an officer “latitude to determine whether a particular container should or should not be opened in light of the nature of the search and" }, { "docid": "8645794", "title": "", "text": "738, 741, 93 L.Ed.2d 739 (1987). Generally, “reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment.” Id. at 374, 107 S.Ct. at 742. As for closed containers, so long as standardized criteria or established routines exist regarding the opening of closed containers, searching such containers is permissible. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990) (citation omitted). The existence of a police policy, however, does not necessarily eviscerate officers’ discretion in deciding whether to search a particular container. In Florida v. Wells, the Supreme Court explained: [I]n forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical “all or nothing” fashion.... A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment. 495 U.S. at 4, 110 S.Ct. at 1635. In the wake of Wells, this Court decided United States v. Wilson, 938 F.2d 785 (7th Cir.1991), cert. denied, 502 U.S. 1062, 112 S.Ct. 946, 117 L.Ed.2d 115 (1992). In Wilson, we held that a warrantless inventory search is constitutionally permissible if “(1) the individual whose possession is to be searched has been lawfully arrested,” and “(2) the search satisfies the fourth amendment standard of reasonableness, i.e., it is conducted as part of the routine procedure incident to incarcerating an arrested person and in accordance with established inventory procedures.” 938 F.2d at 789. Wilson was stopped by an Illinois state trooper for a traffic violation. After the trooper discovered that there was an outstanding" }, { "docid": "16199794", "title": "", "text": "of probable cause. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); United States v. Petty, 367 F.3d 1009, 1011-12 (8th Cir.2004). The inventory search exception to the warrant requirement is premised on an individual’s diminished expectation of privacy in an automobile coupled with the governmental interests in inventorying the vehicle’s contents: to protect an owner’s property while the automobile is in custody, to ensure against claims of lost, stolen, or damaged property, and to guard police from danger. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The central question in evaluating the propriety of an inventory search is whether, in the totality of the circumstances, the search was reasonable. United States v. Rankin, 261 F.3d 735, 740 (8th Cir.2001). “[Inventory searches conducted according to standardized police procedures, which vitiate concerns of an investigatory motive or excessive discretion, are reasonable.” Id. (quoting United States v. Marshall, 986 F.2d 1171, 1174 (8th Cir.1993)). Adherence to standardized procedures is necessary to ensure that the search is not merely “a ruse for general rummaging in order to discover incriminating evidence,” since inventory searches are often conducted in the absence of the safeguards of a warrant and probable cause. Wells, 495 U.S. at 4, 110 S.Ct. 1632 (1990). Requiring an officer to conduct an inventory search pursuant to “standardized criteria” or an “established routine” does not mean that the search must be made in a “totally mechanical” fashion. Petty, 367 F.3d at 1012 (quoting Wells, 495 U.S. at 4, 110 S.Ct. 1632). Indeed, police “may keep their eyes open for potentially incriminating items that they might discover in the course of an inventory search, as long as their sole purpose is not to investigate a crime.” Marshall, 986 F.2d at 1176. However, the Constitution does not permit police to “raise the inventory-search banner -in an after-the-fact attempt to justify what was ... purely and simply a search for incriminating evidence.” Id. at 1175. The Coon Rapids Police Department has a standardized impound and inventory search policy, codified in the Coon Rapids Department" }, { "docid": "7349753", "title": "", "text": "arrest by officers of the Greenwood Village Police Department (GVPD) outside a Motel 6 on March 8, 2005. Defendant claims the GVPD’s inventory search violated the Fourth Amendment’s reasonableness requirement because, contrary to the district court’s conclusion, the Government failed to produce evidence that the search was sufficiently regulated. We review de novo the district court’s conclusion, based upon the undisputed state of the record, that the GVPD’s inventory search of Defendant’s luggage was sufficiently regulated, and thus consonant with the Fourth Amendment. See United States v. Allen, 43 Fed. Appx. 363, 364 (10th Cir.2002) (reviewing the reasonableness of an inventory search de novo). A. In Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990), the Supreme Court upheld the suppression of evidence uncovered during a state trooper’s inventory search of a vehicle where the highway patrol “had no policy whatever with respect to the opening of closed containers encountered during an inventory search.” Id. at 4-5, 110 S.Ct. 1632 (emphasis added). The Court held “that absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment.” Id. at 5, 110 S.Ct. 1632. The Court explained that “standard criteria or established routine ” must regulate the opening of containers located during an inventory search because “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Id. at 4, 110 S.Ct. 1632 (internal citation omitted) (emphasis added). Rather, an inventory search should promote three administrative purposes: “the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.” South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (internal citations omitted). To those ends, the Court in Wells, 495 U.S. at 4, 110 S.Ct. 1632, set parameters within which law enforcement might establish a legitimate inventory search policy: A police officer may be allowed sufficient latitude to determine whether a particular container should or should not" }, { "docid": "1361253", "title": "", "text": "by him from the time of the stop. The district court denied Walker’s motion following a hearing thereon, and after trial entered a verdict of guilty on one of the two counts. The court sentenced Walker to a term of imprisonment of 180 months, to be followed by a three-year term of supervised release, and ordered a $50.00 special assessment. DISCUSSION Walker’s only contention on appeal is that the district court erred in denying his motion to suppress evidence of the two weapons. He claims that the officers’ sole purpose in conducting the search was to investigate further their suspicions that Walker was engaged in criminal activity. He argues that a search conducted for the sole purpose of investigating suspected criminal activity does not fall under the inventory exception to the requirement that police obtain a search warrant. See United States v. Arango-Correa, 851 F.2d 54, 59 (2d Cir.1988). Because the search was not conducted as part of a valid inventory, Walker contends, the evidence must be suppressed because the officers lacked probable cause to search the vehicle without a warrant. “[IJnventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment.” Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987). This exception serves two principal purposes: “ ‘An inventory of an automobile’s contents protects the owner’s personal property while it is in police custody, and reciprocally protects the police against unfounded claims of lost, stolen, or damaged property.’ ” United States v. Hahn, 922 F.2d 243, 246 (5th Cir.1991) (quoting United States v. Judge, 864 F.2d 1144, 1144-45 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990)). Nevertheless, an inventory search cannot be “ ‘a ruse for a general rummaging in order to discover incriminating evidence.’ ” Id. (quoting Florida v. Wells, — U.S. -, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990)). In order to prevent inventory searches from concealing such unguided rummaging, Supreme Court has dictated that “ ‘[a] single familiar standard is essential to guide police officers, who have only limited time" }, { "docid": "23519069", "title": "", "text": "proper inventory search is merely “an incidental administrative step following arrest and preceding incarceration,” Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), conducted to protect the arrestee from theft of his possessions, to protect the police from false accusations of theft, and to remove dangerous items from the arres-tee prior to his jailing, id. at 646, 103 S.Ct. 2605. Such inventory searches, however, must “be conducted according to standardized criteria.” Colorado v. Bertine, 479 U.S. 367, 374 n. 6, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Such standardized criteria are often codified by a police department into a uniform inventory-search policy. For such a policy to be valid, it must curtail the discretion of the searching officer so as to prevent searches from becoming “a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). Otherwise, the policy might devolve into “ ‘a purposeful and general means of discovering evidence of a crime.’ ” Id. (quoting Bertine, 479 U.S. at 376, 107 S.Ct. 738 (Blackmun, J., concurring)). Nevertheless, an inventory-search policy may leave the inspecting officer “sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself.” Id. Standardized search procedures must be “administered in good faith” for their attendant searches to satisfy the Fourth Amendment. Bertine, 479 U.S. at 374, 107 S.Ct. 738. That is, an inventory search conducted pursuant to standardized procedures is valid “so long as the purpose of the inventory is ... not to gather incriminating evidence against the owner.” United States v. Brown, 787 F.2d 929, 932 (4th Cir.1986). At the time of Det. Gunn’s search of the bags in the instant case, the AACOPD had in place a written inventory-search policy that specified with particularity the intake steps that should be followed by booking personnel in processing detainees. Banks does not challenge the constitutional sufficiency of the inventory-search policy itself. Instead, he highlights six discrepancies between" }, { "docid": "8645811", "title": "", "text": "at 2862. Belton establishes a categorical rule for these cases based on a generalized policy rationale, see id. at 460, 101 S.Ct. at 2864; therefore, it is wholly immaterial that a suspect has been handcuffed and arrested (and therefore cannot reach a weapon in the car) before his vehicle is searched. See United States v. Mitchell, 82 F.3d 146, 152 (7th Cir.), cert. denied, — U.S. -, 117 S.Ct. 155, 136 L.Ed.2d 100 (1996); United States v. Willis, 37 F.3d 313, 317-18 (7th Cir.1994); United States v. Arango, 879 F.2d 1501, 1504-07 (7th Cir.1989), cert. denied, 493 U.S. 1069, 110 S.Ct. 1111, 107 L.Ed.2d 1019 (1990); United States v. Karlin, 852 F.2d 968, 970-72 (7th Cir.1988), cert. denied, 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989); United States v. Queen, 847 F.2d 346, 354 (7th Cir.1988) (citing cases). I cannot concur with the court’s alternate rationale that the search was a valid inventory search. In my view, that rationale does not conform with the holding of the Supreme Court of the United States in Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). Wells requires that “standardized criteria ... or established routine ... regulate the opening of containers found during inventory searches” because “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Id. at 4, 110 S.Ct. at 1635. Because “the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search[,]” the Supreme Court held that the search in that case was not sufficiently regulated to comport with the Fourth Amendment and that accordingly the evidence found had to be suppressed. Id at 4-5, 110 S.Ct. at 1635-36. There is simply no way to read Illinois’ policy (see ante, at 1055) to comport with the law as delineated by the Supreme Court. The policy plainly does not set forth any criteria to guide an officer who is deciding whether to open a closed container found during an inventory search. My colleagues come to the opposite" }, { "docid": "11389814", "title": "", "text": "65 (1983)] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” Id. Most recently, in Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990), the Supreme Court held that Florida highway patrol officers violated the Fourth Amendment when, in the course of an inventory search of the defendant’s vehicle, they opened a locked suitcase and discovered a large quantity of marijuana. Id. at 1, 110 S.Ct. at 1634-35. “[T]he record contained no evidence of any Highway Patrol policy on the opening of closed containers found during inventory searches,” and the Court held that the inventory search “was not sufficiently regulated to satisfy the Fourth Amendment.” Id. at 5, 110 S.Ct. at 1634-35. The Court explained: Our view that standardized criteria must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into “a purposeful and general means of discovering evidence of crime.” Id. at 4, 110 S.Ct. at 1635 (citations omitted). Based on Patrolman Adams’ testimony at the suppression hearing, the district court found that Adams had searched the notebook according to “normal procedure ... in Moss Point” and according to “a standardized routine.” That finding was not clearly erroneous. Adams testified at the suppression hearing as follows: Q [By the prosecutor] What was your purpose of doing the inventory search; why did you do it? A Policy of Moss Point Police Department, when you arrest someone out of their vehicle, you tow it and do an inventory search of their personal belongings and items left in the vehicle for the protection of the city. Q All right. Is that standard operating procedures? A Yes, ma’am. Q Is it done in" }, { "docid": "11574727", "title": "", "text": "(1990). “The requirement that standardized criteria or established routine exist as a precondition to a valid inventory search ‘is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.’ ” United States v. Marshall, 986 F.2d 1171, 1175 (8th Cir.1993) (quoting Wells, 495 U.S. at 4, 110 S.Ct. at 1635). As noted above, Thomas refused to sign the inventory form prepared by Ward because it did not specifically list all of the items in the duffel bag. Pursuant to Thomas’s request, therefore, Ward inventoried each item in the bag. Having requested the item-by-item inventory, Thomas cannot now claim that the search was initiated as a means of discovering evidence of a crime. See United States v. Frank, 864 F.2d 992, 1005 (3d Cir.1988) (stating that a defendant who requests an inventory search of his property cannot claim that the search was arbitrary), cert. denied, 490 U.S. 1095, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989). Thomas next argues that even if Ward’s search was proper, Griss’s presence during the search was unlawful because it was not in accordance with standardized procedures. We need not decide this question, however, for Thomas waived his expectation of privacy in the contents of the duffel bag when he requested that Ward inventory them. Id. Moreover, Thomas made this request while Griss was present. Accordingly, we conclude that Griss’s presence during the search did not violate Thomas’s Fourth Amendment rights. Before securing the contents of the duffel bag in an evidence locker, Griss completed a police department property report form. Thomas argues that this, constituted an unlawful inventory search. As we have already discussed, however, Thomas no longer had a legitimate expectation of privacy in the contents of the duffel bag after he requested that Ward inventory them. Additionally, once the police have lawfully seized items as evidence of a crime, subsequent searches of those items while they are in the police’s possession are lawful. United States v. Pace, 898 F.2d 1218, 1243 (7th Cir.), cert. denied, 497 U.S. 1030, 110 S.Ct. 3286," }, { "docid": "22860421", "title": "", "text": "v. Lafayette, 462 U.S. 640, 646-49, 103 S.Ct. 2605, 2609-11, 77 L.Ed.2d 65 (1983). Affirming the suppression of evidence seized by police claiming an inventory search justification, the Supreme Court recently declared that: “The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime....\" Florida v. Wells, — U.S. -, -, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1, 6 (1990) (citation omitted). Conspicuously absent from the testimony at the suppression hearing is any evidence concerning the standardized procedures limiting the discretion of the investigating officers. The prosecution assures itself a smoother and surer path when it provides concrete evidence that the inventory search followed a standardized procedure pursuant to regulatory strictures. Cf. Wells, — U.S. at -, 110 S.Ct. at 1635 (affirming suppression of evidence seized from closed container in absence of inventory policy concerning such containers); Bertine, 479 U.S. at 368 n. 1, 107 S.Ct. at 739 n. 1 (municipal code governing inventory searches); United States v. Wanless, 882 F.2d 1459, 1463 (9th Cir.1989) (inventory pursuant to regulations printed in Washington State Trooper’s Manual); United States v. Johnson, 815 F.2d 309, 314 n. 6 (5th Cir.1987) (scope of inventory regulated by “standardized procedure outlined in a secret service manual”), cert. denied, 484 U.S. 1068, 108 S.Ct. 1032, 98 L.Ed.2d 996 (1988). Nonetheless, in this case, Simpkins’ testimony was uncontroverted that the inventory search was routine and required, that is, the search was performed as a matter of course when a vehicle was impounded and the investigating officer was not at liberty to decline to inventory the contents. The appellant does not suggest that the initial inventory search was anomalous or discretionary, and although we are concerned by the paucity of the record as to the standardized procedures, that issue was not raised and we need not decide it. An inventory search is not a surrogate for investigation, and the scope of an inventory search may not exceed that necessary" }, { "docid": "139797", "title": "", "text": "v. Wells, — U.S. -, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990), the Court concluded that police may search the contents of a vehicle so long as “standardized criteria or established routine” exist regarding the opening of containers. The procedure should direct officers to inventory the contents of an impounded item and should not be a disguise “for general rummaging in order to discover incriminating evidence.” Id. However, within the constraints of the policy/procedure, officers may exercise discretion in deciding whether or not to open a particular container: “But in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in totally mechanical ‘all or nothing’ fashion ... A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment.” Id. (quotation and citations omitted). This court recently (prior to Wells) defined the permissible scope of a warrant- less inventory search. A search is constitutional “if (1) the individual whose possession is to be searched has been lawfully arrested, ... and (2) the search satisfies the fourth amendment standard of reasonableness, i.e., it is conducted as part of the routine procedure incident to incarcerating an arrested person and in accordance with established inventory procedures” United States v. Velarde, 903 F.2d 1163, 1165 (7th Cir.1990) (citation omitted). Since the validity of the defendant’s arrest is not at issue here, we need only concern ourselves with the constitutionality of the inventory search. The defendant contends that the Illinois State Police did not have any policy in effect at the time of his arrest" }, { "docid": "11574726", "title": "", "text": "station house, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed.”). Nevertheless, the district court denied Griss’s summary judgment motion because the record did not contain any evidence that Griss had followed standardized procedures when inventorying the contents of the duffel bag. The record reveals, however, that it was Ward, not Griss, who inventoried Thomas’s duffel bag and discovered the incriminating burglary tools. Thomas argues that because Griss was present when Ward inventoried the bag, he participated in the search and is thus liable because the search was not conducted pursuant to established procedures. Although Ward is not a defendant in this action, we consider the propriety of the search that he performed and in which Thomas alleges that Griss participated. An inventory search is reasonable under the Fourth Amendment only if it is conducted in accordance with standardized procedures. Florida v. Wells, 495 U.S. 1, 3, 110 S.Ct. 1632, 1634-35, 109 L.Ed.2d 1 (1990). “The requirement that standardized criteria or established routine exist as a precondition to a valid inventory search ‘is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.’ ” United States v. Marshall, 986 F.2d 1171, 1175 (8th Cir.1993) (quoting Wells, 495 U.S. at 4, 110 S.Ct. at 1635). As noted above, Thomas refused to sign the inventory form prepared by Ward because it did not specifically list all of the items in the duffel bag. Pursuant to Thomas’s request, therefore, Ward inventoried each item in the bag. Having requested the item-by-item inventory, Thomas cannot now claim that the search was initiated as a means of discovering evidence of a crime. See United States v. Frank, 864 F.2d 992, 1005 (3d Cir.1988) (stating that a defendant who requests an inventory search of his property cannot claim that the search was arbitrary), cert. denied, 490 U.S. 1095, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989). Thomas next argues that even if Ward’s search" }, { "docid": "6466372", "title": "", "text": "stolen property, and protection of the police from potential danger. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097; United States v. Lugo, 978 F.2d 631, 636 (10th Cir.1992). However, inventory searches are reasonable only if conducted according to standardized procedures. Bertine, 479 U.S. at 377, 107 S.Ct. at 744 (Marshall, J., concurring). An inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence, but rather an administrative procedure designed to produce an inventory. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990). See also United States v. Thompson, 29 F.3d 62, 65 (2d Cir.1994) (“The fruit of inventory searches, however, will be suppressed when the searching agents act in bad faith or solely for the purpose of investigation”). The district court found the DEA search, conducted for investigatory rather than administrative purposes, could not properly be characterized as an inventory search. We agree. Agent Mackay testified that he searched Mr. Haro-Salcedo’s vehicle to examine a box he believed may have contained contraband. He stated he was not familiar with the Salt Lake City police department inventory policy and could not describe the usual extent of an inventory search conducted in accordance with that policy. He explained that although he removed several items from the vehicle, he did not complete a written inventory form. These facts strongly support the district court’s conclusion that Agent Mackay used the roadside inventory as a pretextual investigatory search. See Johnson, 994 F.2d at 743 (evidence suppressed where federal agent used state administrative search as pretext for gathering evidence for federal investigation); Lugo, 978 F.2d at 637 (evidence suppressed where search clearly exceeded scope and purpose of inventory search). Thus, the warrantless search of Mr. Haro-Salcedo’s vehicle was unreasonable, and the evidence seized could not be admissible under an administrative search theory. Still, suppression of the cocaine is not appropriate in this instance where the contraband would nonetheless have been discovered. The inevitability of discovering evidence by lawful means removes the taint from evidence first discovered through unlawful means. Nix v. Williams," }, { "docid": "11389820", "title": "", "text": "there was “no evidence of any Highway Patrol policy on the opening of closed containers found during inventory searches.” Id. at 4, 110 S.Ct. at 1635. In Bertine the Court “emphasize[d] that ... the Police Department’s procedures mandated the opening of closed containers and the listing of their contents.” Id., 479 U.S. at 374 n. 6; 107 S.Ct. at 742 n. 6. However, neither of those decisions requires a law enforcement agency’s inventory policy to address specifically the steps that an officer should take upon encountering a closed container. Neither do we understand those eases to require the Moss Point Police Department to promulgate policies which specifically mention notebooks. The requirement to be distilled from the line of cases culminating in Wells is that inventory policies must be adopted which sufficiently limit the discretion of law enforcement officers to prevent inventory searches from becoming evidentiary searches. See United States v. Judge, 864 F.2d 1144, 1145 (5th Cir.1989) (stating that Bertine “does not condemn all forms of police discretion, but only ‘evidentiary discretion which is exercised on the basis of suspicion of criminal activity”), cert. denied, 495 U.S. 918, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990). Because that requirement is met by the MPPD inventory search policy, Andrews has not shown that Adams violated the Fourth Amendment by searching Andrews’ notebook. See United States v. Walker, 931 F.2d 1066, 1068-69 (5th Cir.1991) (finding no Fourth Amendment violation where “police department had an established but unwritten inventory policy,” the purpose of which “was to protect the property of the owner and to reduce the potential liability of the police department”); Gallo, 927 F.2d at 819 (holding that inventory search could not be condemned insofar as department policy permitted opening box for the standard purposes of inventory searches). Andrews also argues, however, that no standardized policy permitted Adams to turn the notebook over to the DEA and the United States Customs Service. Andrews contends that when Adams turned the notebook over to federal officials, “[w]hat began as an inventory search ... became an excuse for ‘investigatory rummaging’ on behalf of Customs and DEA.”" }, { "docid": "139796", "title": "", "text": "searches are a well-recognized exception to the Fourth Amendment’s warrant requirements. See Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); United States v. Velarde, 903 F.2d 1163 (7th Cir.1990); Florida v. Wells, — U.S. -, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); United States v. Kordosky, 921 F.2d 722 (7th Cir.1991). Strong governmental interests and the diminished expectation of privacy in an automobile allow for searches conducted pursuant to inventory procedures because inventory searches “serve to protect an owner’s property while it is in the custody of the police, to insure against claims of loss, stolen, or vandalized property, and to guard the police from danger.” Bertine, 107 S.Ct. at 741 (1987). Ever since the holding in Bertine that “reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment,” the Supreme Court has delineated the constitutional parameters of a warrantless inventory search. Id. at 742. In its most recent decision, Florida v. Wells, — U.S. -, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990), the Court concluded that police may search the contents of a vehicle so long as “standardized criteria or established routine” exist regarding the opening of containers. The procedure should direct officers to inventory the contents of an impounded item and should not be a disguise “for general rummaging in order to discover incriminating evidence.” Id. However, within the constraints of the policy/procedure, officers may exercise discretion in deciding whether or not to open a particular container: “But in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in totally mechanical ‘all or nothing’ fashion ... A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to" }, { "docid": "8645812", "title": "", "text": "in Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). Wells requires that “standardized criteria ... or established routine ... regulate the opening of containers found during inventory searches” because “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Id. at 4, 110 S.Ct. at 1635. Because “the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search[,]” the Supreme Court held that the search in that case was not sufficiently regulated to comport with the Fourth Amendment and that accordingly the evidence found had to be suppressed. Id at 4-5, 110 S.Ct. at 1635-36. There is simply no way to read Illinois’ policy (see ante, at 1055) to comport with the law as delineated by the Supreme Court. The policy plainly does not set forth any criteria to guide an officer who is deciding whether to open a closed container found during an inventory search. My colleagues come to the opposite conclusion by relying on United States v. Wilson, 938 F.2d.785 (7th Cir.1991), cert. denied, 502 U.S. 1062, 112 S.Ct. 946, 117 L.Ed.2d 115 (1992), but that case is irreparably flawed. See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.4(a), at 559 & n. 102 (3d ed.1996) (questioning Wilson). In Wilson a panel of this court, although recognizing that Wells requires a policy regarding the opening of closed containers, 938 F.2d at 788, held that Illinois’ policy provided sufficient guidance. The court reasoned that “the term ‘contents’ [which appears in the policy, see ante, at 1055] provides sufficient elucidation to satisfy the requirements of Wells.” Id. at 789. The panel added that, because officers in Illinois are to fill out a report listing the items found in the car,- officers in Illinois have received sufficient guidance to satisfy the requirements of Wells. In an age when the plain wording approach to interpretation seems to be so en vogue, some might think Wilson’s construction of the word “contents” particularly strained." }, { "docid": "22827235", "title": "", "text": "a warrant-less inventory search of a legitimately seized vehicle,” Bush, 647 F.2d at 370, provided the inventory is “conducted according to standardized criteria or established routine,” Bertine, 479 U.S. at 374 n. 6, 107 S.Ct. at 742 n. 6; see Florida v. Wells, — U.S. -, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990); Bertine, 479 U.S. at 374 n. 6, 107 S.Ct. at 742 n. 6; South Dakota v. Opperman, 428 U.S. 364, 372, 96 S.Ct. 3092, 3098-99, 49 L.Ed.2d 1000 (1976). The requirement that inventory searches be conducted according to such criteria or routine strikes a balance between the government’s legitimate interests in such searches and the owner's legitimate expectation of privacy in the contents of the seized vehicle. See Wells, 110 S.Ct. at 1638 n. 2 (Brennan, J., concurring); Bertine, 479 U.S. at 372, 107 S.Ct. at 741; Opperman, 428 U.S. at 378-80, 96 S.Ct. at 3101-03. On a more practical level, the requirement insures that “police officer[s] ... not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime,’ ” Wells, 110 S.Ct. at 1635 (quoting Bertine, 479 U.S. at 376, 107 S.Ct. at 743 (Blackmun, J., concurring)), and “guide[s] police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” Bertine, 479 U.S. at 375, 107 S.Ct. at 743 (quotations omitted); see also Wells, 110 S.Ct. at 1638 n. 1 (Brennan, J., concurring). Standardized criteria or an established routine governing inventory searches must limit an officer’s discretion in two ways. First, it must limit the officer’s discretion regarding whether to search a seized vehicle. See Bertine, 479 U.S. at 375-76, 107 S.Ct. at 742-44; United States v. Frank, 864 F.2d 992, 1002-03 (3d Cir.1988) (recognizing necessity of “established police department rules or policy [so that] the officer does not make a discretionary, and perhaps arbitrary[,] determination to search”), cert. denied, 490 U.S. 1095, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989). Second, the pre-existing criteria or routine must limit an" }, { "docid": "18617458", "title": "", "text": "granting Gerber’s motion to suppress this evidence is REVERSED, and the case is REMANDED for further proceedings not inconsistent with this opinion. . The FBI routinely conducts thorough inventory searches of all impounded vehicles. . \"When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions ... between glove compartments, upholstered scats, trunks, . and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.” United States v. Ross, 456 U.S. 798, 821, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982). . The government has contended that the car search on Monday, September 16, 1991, was a valid inventory search. Because the agents dearly were continuing their search for evidence of the bank robbery based on enhanced probable cause from their discovery of incriminating evidence on the preceding Friday, we do not consider the Monday search to be an inventory search. See Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990) (\"[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.”); Colorado v. Bertine, 479 U.S. 367, 376, 107 S.Ct. 738, 743, 93 L.Ed.2d 739 (1987) (Because inventory searches are conducted \"only pursuant to standardized police procedures,” they \"will not be used as a purposeful and general means of discovering evidence of crime.” (Blackmun, J., concurring)); United States v. Bosby, 675 F.2d 1174, 1179 (11th Cir.1982) (\"Inventory searches must, however, ‘be limited to effectuation of the recognized purposes for which they are conducted and they may not be used as a pretext for intrusive investigatory searches that would otherwise be impermissible.’ ” (quoting United States v. Prescott, 599 F.2d 103, 105 (5th Cir.1979)). . Wo want to be careful not to be misunderstood to be providing a precedent for careless attention to the acquisition of warrants, including their duration. The government should use caution to follow the dictates of Rule 41 explicitly so that appeals such as this based on failure to" } ]

[ { "docid": "23199497", "title": "", "text": "should the pro se prisoner fail to contradict the moving party with counter-affidavits or other evidence, the moving parties’ evidence might be taken as the truth, and final judgment may be entered without a full trial. C. Appointment of Counsel Appellant filed two motions for the appointment of counsel, both were denied. Appellant now appeals these denials. The denial of a motion for appointment of counsel under 28 U.S.C. § 1915 is reviewed for abuse of discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986). There is no constitutional right to appointed counsel in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.1981). However, in “exceptional circumstances,” a district court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(d). Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980). To decide whether these exceptional circumstances exist, a district court must evaluate both “‘the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.’ ” Wilborn, 789 F.2d at 1331 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983)). First, in his motions for the appointment of counsel, Appellant offered no argument to the effect that he had any requisite likelihood of success. As to the second portion of the test, the district court judge is to have applied the indigent’s ability to articulate his claims against the relative complexity of the matter. Appellant’s pursuit of discovery with interrogatories and document requests was comprehensive and focused. Appellant filed numerous motions throughout this action. Though they did not achieve the quality of papers that might have been prepared by a lawyer, Appellant’s papers were generally articulate and organized. On appeal, Appellant notes that had he had the assistance of counsel during the early stages of the proceedings, he may well have fared better-particularly in the realms of discovery and the securing of expert testimony-but this is not the test. As was implied in Wilbom, any pro se litigant certainly would be better served with the" } ]

[ { "docid": "644335", "title": "", "text": "the Court will hold a hearing and requests the State, if it is opposing the issuance of the writ, to make the inmate-witness available telephonieally so that the Court and the parties may inquire, with due regard for any privileges of the inmate-witness, whether he or she has relevant testimony. If the Court determines that the inmate-witness has relevant testimony, then the Court must determine whether the testimony is necessary and whether any real security risks are involved. If security concerns exist, the Court will determine whether a deposition may be taken or whether the witness can testify telephonieally with appropriate instructions to the jury noting the distance of the inmate-witness away from the court-house and that they should consider the testimony as if it were live. C. Expenses The Ninth Circuit has concluded that a district court judge has the discretion to allocate the costs of compliance with a writ of habeas corpus ad testificandum in several ways. Wiggins v. Alameda County, 717 F.2d 466, 469 (9th Cir.1983), cert. denied, 465 U.S. 1070, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984). These combinations include the sharing of costs, as well as imposing full costs on the United States, or imposing the full costs on the State. See Wiggins v. Alameda County, 717 F.2d 466, 469 (9th Cir.1983) (the Court found no Congressional nor statutory authority for reimbursement of witnesses when district court judge imposed on the state the full costs of compliance with a writ of habeas corpus ad testificandum). Furthermore, if some or all the costs are imposed either on the United States or the State for the responsibility, costs of transportation and safekeeping of the inmate-witness, the United States or State cannot excuse the performance of its duty by projecting that the physical and monetary burdens will render performance impossible. Ballard, 557 F.2d at 481. Once the district court has determined that the prisoner’s presence is essential and not outweighed by security concerns, the possibility that a lack of transportation funds or personnel will develop is not a justification for refusing to issue the writ. Id. Thus, the" }, { "docid": "19036288", "title": "", "text": "that Cano repeatedly and regularly exhibited violent behaviors and therefore could not be placed in a lower custody part of the prison (a unit other than the Special Management Unit (“SMU”) or the pod in the mental health unit) because he was a danger to himself and/or others. For example, the prison’s daily cell-front visit logs show statements by Cano such as: “I feel like harming someone else.”; “You f-with me, I’ll get you. You f-with me, I’ll mess you up.”; “I’m feeling angry. I am not ready to go back today.”; “Get the f-away from my face.”; “I had an episode yesterday — I punched my bunk for 20 minutes.”; and “I’ll cut your f-ing head off.” There are also 28 documented refusals by Cano to take his medication in the record. There are countless forms in the record demonstrating follow-up by staff, including cell-front visits to check on Cano’s mood, continuous progress reports, psychiatric follow-ups, mental health treatment plans, and watch discharge summaries. In short, the record indicates that prison mental healthcare professionals were incredibly responsive to Cano’s needs and no reasonable trier of fact could find that there was deliberate indifference to Cano’s complaints. Therefore, the district court’s grant of summary judgment on count I is affirmed. C. Cano also appeals the district court’s denial of his request for appointed counsel. The decision to appoint counsel in a civil suit is one of discretion and a district court’s determination will be overturned only for abuse of that discretion. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.2009). A district court must determine whether a) there is a likelihood of success on the merits; and b) the prisoner is unable to articulate his claims in light of the complexity of the legal issues involved. Id. None of these factors is dispositive; rather they must be considered cumulatively. Id. In the instant case, there are no exceptional circumstances, because Cano is unlikely to succeed on the merits, and Cano has been able to articulate his legal claims in light of the complexity of the issues involved. Therefore, we affirm" }, { "docid": "22557169", "title": "", "text": "Solis v. County of Los Angeles, 514 F.3d 946, 956 (9th Cir.2008), holds that “[n]ot every participation in a bench trial constitutes consent to the waiver of a jury trial,” it affirms that the right to a jury trial may be waived. Id. at 953. In Solis, we noted that Solis had brought his prior jury demand to the district court’s attention during the period between the bench trial notice and the trial, and had reiterated his demand for a jury trial in his second motion for counsel that was filed after the district court held that he had waived his jury right. Id. Here, by contrast, it was Palmer who sought to waive his jury right in response to his failure to procure the attendance of his witnesses. Moreover, he never suggested to the district court that his proposed reso lution of his problem constituted an improper conditioning of his constitutional' right to a jury trial. On this record, we conclude that Palmer knowingly and voluntarily waived his right to a jury trial and that the district court’s acceptance of Palmer’s waiver did not violate his constitutional right to a jury trial. Ill Palmer also challenges the district court’s refusal to appoint counsel to assist him. A district court’s refusal to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) is reviewed for an abuse of discretion. See Campbell v. Burt, 141 F.3d 927, 931 (9th Cir.1998). Generally, a person has no right to counsel in civil actions. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.1981). However, a court may under “exceptional circumstances” appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128, 125 S.Ct. 2941, 162 L.Ed.2d 867 (2005). When determining whether “exceptional circumstances” exist, a court must consider “the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look," }, { "docid": "22557170", "title": "", "text": "that the district court’s acceptance of Palmer’s waiver did not violate his constitutional right to a jury trial. Ill Palmer also challenges the district court’s refusal to appoint counsel to assist him. A district court’s refusal to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) is reviewed for an abuse of discretion. See Campbell v. Burt, 141 F.3d 927, 931 (9th Cir.1998). Generally, a person has no right to counsel in civil actions. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.1981). However, a court may under “exceptional circumstances” appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128, 125 S.Ct. 2941, 162 L.Ed.2d 867 (2005). When determining whether “exceptional circumstances” exist, a court must consider “the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983). Neither of these considerations is dispositive and instead must be viewed together. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986). Palmer asserts that he should have been appointed counsel because he was likely to succeed on the merits, the pain from his surgery limited his ability to prepare for trial, and prison officials had denied him access to his legal documents, thereby limiting his ability to prepare for trial. The district court was sensitive to Palmer’s predicament. It questioned Palmer and defense counsel before trial to ensure that Palmer had sufficient access to his legal documents, and it limited the length of the trial days and provided three break periods. At the conclusion of the trial, the district court noted that Palmer had done “quite a good job” putting on his case, and that he was well-organized, made clear points, and presented the evidence effectively. We conclude that Palmer has not made the requisite‘showing of exceptional circumstances for the appointment of counsel and that the district court did" }, { "docid": "22845234", "title": "", "text": "this appeal filed, and to remit monthly installment payments thereafter until he succeeded in paying the full appellate filing fee of $105 (which he eventually did). See R. 18. Webb now asks that the filing fee be refunded, arguing (with the support of precedent from other circuits) that Newlin and Thurman were wrongly decided to the extent they characterized habeas actions like his own as “civil actions” for purposes of the PLRA. We recently reached that very conclusion in Walker v. O’Brien, 216 F.3d 626, 633-37 (7th Cir.2000), in which we held that the PLRA does not apply to a petition for a writ of habeas corpus properly filed under either 28 U.S.C. § 2241 or § 2254. Our holding in Walker does not entitle Webb to a refund of the appellate filing fee, however. As we noted in Walker itself, “[a] court has within its discretion to insist that litigants proceeding IFP in non-PLRA cases must nonetheless pay a fee commensurate with their ability to do so.” 216 F.3d at 638 n. 5, citing Longbehn v. United States, 169 F.3d 1082, 1083-84 (7th Cir.1999). The fact that Webb managed, over time, to pay the filing fee in its entirety demonstrates that the full fee was within his means. See Walker, 216 F.3d at 638 n. 5. III. Because the decision of prison officials to revoke 90 days of good time credit has the support of some evidence, we Affirm the judgment of the district court denying Webb’s petition for a writ of habeas corpus. As this case does not constitute a “civil action” for purposes of 28 U.S.C. § 1915(b), Webb was not required to pay a fee in order to file the appeal. . The district court suggested that the loss of credits for good time served \"probably does not implicate a liberty interest” under Sandin v. Conner, 515 U.S. 472 [115 S.Ct. 2293], 132 L.Ed.2d 418 (1995). R.9, Webb v. Parke, No. 97 C 337, Order at 1. Here there is no dispute, however, that Indiana law gives rise to a liberty interest in good time credits." }, { "docid": "23682216", "title": "", "text": "See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (citation omitted) (“[W]e recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause.... But these interests will be generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”). Thus, Burt cannot reasonably have been expected to know that a doctrine largely confined to prison regulations, which had never before been applied to creating federal liberty interests in statutes like H.R.S. §§ 587-24 and 587-21, would cause his actions to violate Campbell’s federal constitutional rights. This is especially true given the fact, as discussed above, that federal ease law had not clearly established that a seven-day delay in seeking judicial review was unconstitutional. IV Campbell also appeals various other rulings of the district court. We hold that the district court did not abuse its discretion by denying Campbell’s motions for the appointment of counsel. See Storseth v. Spell-man, 654 F.2d 1349, 1353 (9th Cir.1981) (holding that there is no constitutional right to appointed counsel for § 1983 claims). We also hold that the district court did not abuse its discretion by denying Campbell’s motions for the joinder of his minor children and Rossi as plaintiffs in his pro se lawsuit. See Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir.1996) (holding that joinder is reviewed for abuse of discretion). Neither Campbell’s children nor Rossi indicated a desire to join the lawsuit, and Campbell may not represent their interests in court. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (holding that a parent cannot bring an action on behalf of minor children without retaining a lawyer); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987) (holding that while a nonattomey may represent himself, he has no authority to appear as an attorney for others). The district court also did not err by dismissing Campbell’s remaining state law claims, which were subject to qualified" }, { "docid": "22686315", "title": "", "text": "stated a Bivens cause of action. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). As his complaint alleges, each defendant was a federal employee acting under color of federal law, not state law, “during all the time relevant to this complaint.” The district court denied Terrell’s motion for appointment of counsel pursuant to 28 U.S.C. § 1915(d). We review this for an abuse of discretion. Oliva v. Heller, 839 F.2d 37, 40 (2d Cir.1988) (Bivens action); McElyea v. Babbitt, 833 F.2d 196, 199-200 (9th Cir.1987) (section 1983 action). The court may appoint counsel under section 1915(d) only under “exceptional circumstances.” “A finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.’ Neither of these factors is dispositive and both must be viewed together before reaching a decision.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986) (citations omitted) (section 1983 action); See Smith-Bey v. Hospital Adm’r, 841 F.2d 751, 760 (7th Cir.1988) (Bivens action) (citing Maclin v. Freake, 650 F.2d 885, 887-88 (7th Cir.1981)). The trial court did not abuse its discretion by refusing to appoint counsel for Terrell. Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. The district court also denied Terrell’s request to stay summary judgment and continue discovery pursuant to Federal Rule of Civil Procedure 56(f). We review that denial for an abuse of discretion. Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416-17 (9th Cir.1987). The court may grant such a request if the party opposing summary judgment needs additional time to discover “facts essential to justify the party’s opposition.” Fed.R. Civ.P. 56(f). The party opposing summary judgment bears the burden of showing “what facts she hopes to discover to raise a material issue of fact.” Hancock v. Montgomery Ward Long Term" }, { "docid": "22757216", "title": "", "text": "not our function to speculate about how future parole hearings could proceed. Cf. id. The evidence of Sass’ prior offenses and the gravity of his convicted offenses constitute some evidence to support the Board’s decision. Consequently, the state court decisions upholding the denials were neither contrary to, nor did they involve an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d). While the district court decision is correct under the AEDPA standard of review, we have pointed out that the district court based its decision on an erroneous reading of the California Supreme Court in Dannenberg. However, under the law of this circuit, “[w]e may affirm the district court’s decision on any ground supported by the record, even if it differs from the district court’s rationale.” Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004). AFFIRMED. . We deny the government's motion for reconsideration of the order granting Sass’ motion to supplement the record on appeal. . Prior to his second degree murder conviction, Sass had been convicted on seven separate occasions for DUI. . Despite the government’s argument that Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), eliminated the \"mandatory language” approach of Green-holtz and Allen, the Supreme Court did not so hold and this court has consistently rejected this argument. See, e.g., McQuillion, 306 F.3d at 903; Biggs, 334 F.3d at 914. REINHARDT, Circuit Judge, dissenting: I am compelled to dissent from the majority’s refusal to grant relief to a person whose continued incarceration “runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation,” Maj. Op. at 1129 (quoting Biggs v. Terhune, 334 F.3d 910, 917 (9th Cir.2003) (emphasis added)) — a person who is currently entitled to relief under any rational application of the law. The majority offers no reasoned explanation for this refusal, no doubt because its decision to deny relief finds no support in either law or logic. Before I explain why the majority’s decision is erroneous, it may" }, { "docid": "23442023", "title": "", "text": "district court’s stay was lifted and Murray filed a “Motion for Leave to File a Second Amended Petition for Habe-as Corpus.” Murray’s proposed Second Amended Petition attempted to include his previously withdrawn claims, as well as one new claim, in his federal habeas petition. The district court denied Murray’s motion to amend. The district court denied Murray’s First Amended Petition for Writ of Habeas Corpus on the merits and declined to issue a certifícate of appealability. Murray filed a timely Notice of Appeal. II. STANDARD OF REVIEW A. Certified Claims — Batson and Ineffective Assistance of Counsel We review de novo the district court’s denial of a petition for writ of habe-as corpus. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.2000) (en banc). However, because Murray filed his federal ha-beas petition on October 7, 1999, after AEDPA’s effective date, we are bound by AEDPA. See Valerio v. Crawford, 306 F.3d 742, 763 (9th Cir.2002) (en banc) (specifying April 24, 1996 as AEDPA’s effective date). AEDPA authorizes the grant of a state prisoner’s petition for a writ of habeas corpus when the relevant state-court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under AEDPA, we review the last reasoned state-court decision. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005). When a state court does not explain the reason for its decision, we “look through” to the last state-court decision that provides a reasoned explanation capable of review. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000). At times, however, no state-court decision furnishes a basis for the state court’s underlying reasoning. In such a circumstance, our duty under AEDPA is not absolved. See Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011) (presuming that a state court’s unexplained, summary denial of the prisoner’s habeas petition constituted an adjudication on the merits); see also Johnson v." }, { "docid": "22845235", "title": "", "text": "Longbehn v. United States, 169 F.3d 1082, 1083-84 (7th Cir.1999). The fact that Webb managed, over time, to pay the filing fee in its entirety demonstrates that the full fee was within his means. See Walker, 216 F.3d at 638 n. 5. III. Because the decision of prison officials to revoke 90 days of good time credit has the support of some evidence, we Affirm the judgment of the district court denying Webb’s petition for a writ of habeas corpus. As this case does not constitute a “civil action” for purposes of 28 U.S.C. § 1915(b), Webb was not required to pay a fee in order to file the appeal. . The district court suggested that the loss of credits for good time served \"probably does not implicate a liberty interest” under Sandin v. Conner, 515 U.S. 472 [115 S.Ct. 2293], 132 L.Ed.2d 418 (1995). R.9, Webb v. Parke, No. 97 C 337, Order at 1. Here there is no dispute, however, that Indiana law gives rise to a liberty interest in good time credits. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); Meeks v. McBride, 81 F.3d 717, 719 (7th Cir.1996). Moreover, we have repeatedly concluded that the loss of good time credits will support a claim for the deprivation of due process. See Thomas v. McCaughtry, 201 F.3d 995, 999 n. 4 (7th Cir.2000); Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir.1997); Meeks, 81 F.3d at 719. . Webb suggests that one digit in the sample’s eleven-character toxicology number may not match the number reflected on the toxicology report (Reply Br. at 3), but we disagree. What he (or his counsel) reads as a \"6” we believe to be a \"5,” which conforms to the toxicology report. See R.6 Ex. A3. . We note that in Thompson v. Owens, 889 F.2d 500, 502 (3d Cir.1989), the Third Circuit held that a positive toxicology report alone sufficed as “some evidence” of a prisoner’s drug use without any additional evidence as to the chain of custody. We need not, and do" }, { "docid": "23291175", "title": "", "text": "28 U.S.C. §§ 2241 and 2243, not the All Writs Act, authorize courts to issue writs of habeas corpus ad testificandum. “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. at 43, 106 S.Ct. at 361. Because no exceptional circumstances existed here, we conclude that the district court issued the writ pursuant to sections 2241 and 2243, not pursuant to § 1651(a). B. Sections 2241 and 2243 are silent with regard to who pays the expenses of complying with writs of habeas corpus ad testificandum. We know of no rule that prohibits a court from requiring the custodian of a prisoner to transport the prisoner to court proceedings at the custodian’s expense. This seems nothing more than an unexceptional cost of maintaining a prison system. Apparently no appellate court has considered a case in which a state has sought to recover from a prisoner the expenses of complying with a writ of habeas corpus ad testificandum. Earlier cases in which courts allocated those expenses between federal and state governments are instructive, however. We agree with Judge Gibbons’ statement in Story v. Robinson, 689 F.2d 1176 (3rd Cir.1982), that the authority of federal courts to issue writs of habeas corpus ad testificandum has never “been qualified by a requirement that the respondent custodian, state or federal, be compensated for compliance with the writ.” Id. at 1179. In Wiggins v. County of Alameda, 717 F.2d 466 (9th Cir.1983), cert. denied sub nom. California Department of Corrections v. United States, 465 U.S. 1070, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984), a United States Magistrate ordered the state to transport, guard and pay all expenses incurred in producing a state prisoner for trial of his civil rights action against a county. Relying on Story v. Robinson, the court of appeals affirmed the order, finding “no basis upon which the state can seek compensation for its expenses.” 717 F.2d at 469. The Supreme Court recently discussed the relationship among 28 U.S.C. § 1821, 28 U.S.C. § 1920, and Fed.R.Civ.P. 54(d)." }, { "docid": "2972424", "title": "", "text": "court “to review and rule on the argument ] in the first instance.” Visciotti v. Brown, 406 F.3d 1131, 1131 (9th Cir. 2005). The district court denied Visciotti’s remaining claims for relief. It issued a certificate of appealability on claim l.C (contesting trial counsel’s penalty phase effectiveness) and claim 12 (contesting closure of the death qualification voir dire). This appeal followed. After oral argument, we granted Visciotti’s request to expand the certificate of appealability to cover claim 58 of his proposed second amended petition, limited to the question whether “the cumulative effect of constitutionally ineffective representation throughout the criminal process, including both the guilt and penalty phases, prejudice[d] Visciotti in the penalty phase of his trial?” II. STANDARD OF REVIEW We review a district court’s denial of a petition for writ of habeas corpus de novo. Deck v. Jenkins, 768 F.3d 1015, 1021 (9th Cir. 2014). As Visciotti’s petition is governed by AEDPA, Visciotti can prevail on a claim “that was adjudicated on the merits in State court” only if he can show that the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Under AEDPA, “[w]e review the last reasoned state court opinion.” Musladin v. Lamarque, 555 F.3d 830, 834-35 (9th Cir. 2009) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). However,’ “when it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); see also Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). III. DISCUSSION A. Ineffectiveness of Counsel (IAC) Ordinarily, “[a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence" }, { "docid": "22161947", "title": "", "text": "days of filing is reviewed for an abuse of discretion. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir.1990). In cases involving plaintiffs proceeding in forma pauperis, the United States Marshal, upon order of the court, is authorized to serve the summons and the complaint. See 28 U.S.C. § 1915(c); Boudette v. Barnett, 923 F.2d 754, 757 (9th Cir.1991). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties_” Puett, 912 F.2d at 275. So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service “is automatically good cause within the meaning of Rule 4(j).” Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990) (internal quotations omitted). Here, Walker did not prove that he provided the marshal with sufficient information to serve Housewright or that he in fact requested that Housewright be served. The district court did not abuse its discretion in concluding that Walker failed to show cause. D Walker argues that the district court abused its discretion in failing to grant a writ of habeas corpus ad testificandum to allow Johnson to testify as a witness for Walker. Johnson was incarcerated in the Nevada State Prison in Jean, Nevada, located approximately 500 miles from where the district court sits. The district court declined to order the writ on recommendation from the magistrate judge because Walker refused to indicate to what Johnson would testify. Since the importance of Johnson’s presence could not be ascertained, the district court concluded that the inconvenience and expense of transporting him to the prison would outweigh any benefit he would provide. In any event, after the district court denied the motion, the district court granted summary judgment on the merits of each claim; the only issue left for trial was damages. There is no indication in the record that Johnson’s" }, { "docid": "1476642", "title": "", "text": "of water. . Article 20 of the 1986 Judgment specifically precludes any reimbursement for the $0.50 drainage component paid prior to the Judgment: \"No party or water user shall be enli-tied to reimbursement of any $0.50 per acre foot drainage service charged paid in the past.” . Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under the standard articulated in 56(e). See Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir.1996); Anheuser-Busch, Inc. v. Nat’l Beverage Distribs., 69 F.3d 337, 345 n. 4 (9th Cir.1995). Properly authenticated documents, including discovery documents, although such documents are not admissible in that form at trial, can be used in a motion for summary judgment if appropriately authenticated by affidavit or declaration. See United States v. Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 491-92 (9th Cir.1990). Supporting and opposing affidavits must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. See Fed. R. Civ. P. 56(e); Conner v. Sakai, 15 F.3d 1463, 1470 (9th Cir.1993), rev’d on other growids sub noni., Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). . A district court’s denial of either motion is reviewed for an abuse of discretion. See Fuller, 950 F.2d at 1441. . The underlying decision on the merits, United States v. Navarro, 959 F.Supp. 1273 (E.D.Cal.1997), was reversed by United States v. Navarro, 160 F.3d 1254 (9th Cir.1998), cert. denied 527 U.S. 1011, 119 S.Ct. 2354, 144 L.Ed.2d 249 (1999). This reversal did not affect the district court’s denial of reconsideration. . “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule" }, { "docid": "19036289", "title": "", "text": "were incredibly responsive to Cano’s needs and no reasonable trier of fact could find that there was deliberate indifference to Cano’s complaints. Therefore, the district court’s grant of summary judgment on count I is affirmed. C. Cano also appeals the district court’s denial of his request for appointed counsel. The decision to appoint counsel in a civil suit is one of discretion and a district court’s determination will be overturned only for abuse of that discretion. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.2009). A district court must determine whether a) there is a likelihood of success on the merits; and b) the prisoner is unable to articulate his claims in light of the complexity of the legal issues involved. Id. None of these factors is dispositive; rather they must be considered cumulatively. Id. In the instant case, there are no exceptional circumstances, because Cano is unlikely to succeed on the merits, and Cano has been able to articulate his legal claims in light of the complexity of the issues involved. Therefore, we affirm the district court’s denial of Cano’s request for counsel. Cano argues that the district court, in granting summary judgment as to count I and denying the appointment of counsel, improperly relied on Hutchinson v. United States, 838 F.2d 390, 393 (9th Cir.1988), for the proposition that it was incumbent on him “to provide an affidavit or deposition of an expert to establish the standard of care.” It appears that the district court may have overstated the need for an expert, but if error, this was harmless error because the district court properly held that Cano’s “conclusory allegations as to the adequacy of care or his worsening mental condition are insufficient to defeat summary judgment.” The district court correctly noted that the copies of medical records that Cano provided do not make a prima facie case for his argument. Cano also argues that denial of appointed counsel was improper because the district court addressed the merits of Defendants’ motion for summary judgment before it addressed his likelihood of success (and thus whether or not he should" }, { "docid": "644334", "title": "", "text": "is otherwise frivolous. United States v. Sims, 637 F.2d 625, 627 (9th Cir.1980). The Court may also consider whether testimony is cumulative, United States v. Henry, 560 F.2d 963, 965 (9th Cir.1977), and the difficulties in securing a prisoner’s testimony versus the actual need for such testimony. United States v. Rinchack, 820 F.2d 1557, 1568 (11th Cir.1987). Therefore, the' Court finds that the party requesting a writ of habeas corpus ad testificandum must set forth in a sworn affidavit (1) what the inmate-witness will testify to; (2) how the plaintiff knows that the inmate-witness will testify as such; and (3) why the testimony is necessary. The State can oppose the writ with an affidavit showing that the inmate-witness would not provide such testimony, that such testimony is unnecessary or that the movement of the prisoner would create actual and substantive security risks. The State may obtain information relating to the issue of the potential inmate-witness’ knowledge from an interview with the inmate-witness(es). If a dispute exists as to whether the inmate-witness actually has relevant testimony, the Court will hold a hearing and requests the State, if it is opposing the issuance of the writ, to make the inmate-witness available telephonieally so that the Court and the parties may inquire, with due regard for any privileges of the inmate-witness, whether he or she has relevant testimony. If the Court determines that the inmate-witness has relevant testimony, then the Court must determine whether the testimony is necessary and whether any real security risks are involved. If security concerns exist, the Court will determine whether a deposition may be taken or whether the witness can testify telephonieally with appropriate instructions to the jury noting the distance of the inmate-witness away from the court-house and that they should consider the testimony as if it were live. C. Expenses The Ninth Circuit has concluded that a district court judge has the discretion to allocate the costs of compliance with a writ of habeas corpus ad testificandum in several ways. Wiggins v. Alameda County, 717 F.2d 466, 469 (9th Cir.1983), cert. denied, 465 U.S. 1070, 104" }, { "docid": "22954674", "title": "", "text": "protected liberty interest in remaining free from that confinement or restraint.” Id. at 317; see also Arce v. Walker, 139 F.3d 329, 336-37 (2d Cir.1998); Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998); Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir.1997). Although there is no bright-line rule regarding the length or type of sanction that would give rise to an “atypical and significant hardship,” this standard will not be met unless the disciplinary and administrative sanctions are onerous. See Sandin, 515 U.S. at 486, 115 S.Ct. 2293 (30 days’ disciplinary segregation did not constitute atypical, significant hardship); Scott v. Albury, 156 F.3d 283, 287 (2d Cir.1998) (per curiam); Arce, 139 F.3d at 337 (collecting cases). A plaintiffs inability to meet the Sandin standard, properly raised by a defendant on a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., is not, however, the sole defense that a defendant may raise to a conditions of confinement claim under § 1983. Because, under the PLRA, a prisoner must exhaust administrative remedies before filing a § 1983 suit and, in the case of suits seeking damages for mental or emotional injuries, make a prior showing of physical injury, a defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiffs failure to comply with the PLRA’s requirements. Here, the district court did not consider the application of Sandin because it found that Jenkin’s claims were barred under Heck and Edwards. We therefore remand the case to the district court for consideration of whether Jenkins has stated a claim for a deprivation of procedural due process within the requirements of San-din, as well as any other appropriate affirmative defenses. CONCLUSION The judgment of the district court is vacated and we remand the case for further consideration. Defendant-appellee shall bear costs of this appeal. . This court recently has held that the PLRA's exhaustion of remedies clause does not apply retroactively. See Salahuddin v. Mead, 174 F.3d 271 (2d Cir.1999). Regardless, Jenkin’s claim would not be barred by the PLRA's exhaustion requirement because it is undis-puled that Jenkins exhausted" }, { "docid": "22630746", "title": "", "text": "that her previous attorney was ineffective because he failed to inform her about her possible eligibility to apply for INA § 212(h) relief from removal. Taniguchi also requested a stay of removal. United States District Judge Martin J. Jenkins denied the petition for writ of habeas corpus and the request for a stay of removal on August 17, 2000. Judge Jenkins held that the District Court lacked jurisdiction to make a determination of Taniguchi’s claim of citizenship because, under INA § 242(b)(5), 8 U.S.C. § 1252(b)(5), she was required to pursue her citizenship claim via a petition for review in the court of appeals. Judge Jenkins also held that because Taniguchi never applied for a waiver of removal under INA § 212(h), 8 U.S.C. § 1182(h), and therefore, never received a denial of her application, she lacked standing to raise her equal protection claim. Finally, Judge Jenkins held that Taniguchi was not entitled to a grant of the writ on her ineffec tive assistance of counsel claim because she did not establish prejudice. II. STANDARDS OF REVIEW The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995) (citing Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988)). Likewise, whether the court must dismiss the petition for review goes directly to the court’s subject matter jurisdiction and is therefore subject to de novo review. See Ma v. Reno, 114 F.3d 128, 130 (9th Cir.1997); Sahni v. Am. Diversified Partners, 83 F.3d 1054, 1057 (9th Cir.1996). III. DISCUSSION A. Petition for Review This court has jurisdiction over petitions for review to “determine whether jurisdiction exists.” Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000). Therefore, the question of whether one is actually an alien would normally give rise to such jurisdiction. However, Taniguchi’s claim of citizenship fails because she has not exhausted her administrative remedies as required by statute. Under INA § 242(d)(1), 8 U.S.C. § 1252(d)(1), “[a] court may review a final order of removal only if — (1) the alien has exhausted all administrative remedies" }, { "docid": "2310091", "title": "", "text": "habeas review. We affirm. BACKGROUND In September 1995, Jenkins was convicted, following a jury trial, of felony murder and armed robbery in the shooting death of a convenience store clerk in Riceboro, Georgia, and was sentenced to life without possibility of parole. Jenkins v. State, 268 Ga. 468, 491 S.E.2d 54, 56 & n. 1 (1997). The Supreme Court of Georgia affirmed, id. at 56-60, and a petition for certiorari was denied, Jenkins v. Georgia, 523 U.S. 1029, 118 S.Ct. 1318, 140 L.Ed.2d 481 (1998). In July 1998, he filed a § 2254 habeas petition in the Southern District of Georgia, which was denied in a detailed, 30-page opinion. Jenkins, 103 F.Supp.2d at 1358-82. The Eleventh Circuit issued a “Certificate of Appealability” (“COA”) limited to Jenkins’ ineffective assistance claim, and affirmed. Jenkins v. Byrd, 273 F.3d 397 (11th Cir.2001). The present declaratory judgment action was filed in the Eastern District of New York in mid-March 2001, shortly after the Eleventh Circuit issued a COA in Jenkins’ contemporaneous § 2254 proceedings. According to the complaint: As a result of the actions of the District Court [of the Southern District of Georgia] and the [Eleventh Circuit] Court of Appeals, plaintiff has been deprived by defendant of his constitutional rights to petition for habeas corpus relief and to appeal. The complaint alleges that § 2253(c) is unconstitutional on its face, and that §§ 2253(c) and 2254(d) are unconstitutional as applied to Jenkins by the courts of the Eleventh Circuit. The district court dismissed on the ground that “[a]n actual controversy does not exist ... because it is not likely that a decision in plaintiffs favor will provide him with the rélief he seeks.” This appeal followed. DISCUSSION Jenkins’ cause of action arises (if at all) under the Declaratory Judgment Act, which provides that: In a case of actual controversy within its jurisdiction .any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is ' or\" could be sought. 28 U.S.C." }, { "docid": "22820642", "title": "", "text": "therefore, waived it. See Paciulan v. George, 229 F.3d 1226, 1230 (9th Cir.2000), cert. denied, 531 U.S. 1077, 121 S.Ct. 775, 148 L.Ed.2d 673 (2001). Valdez also raises a Sixth Amendment claim, asserting that the requirement that he obtain permission to telephone his attorney made it practically impossible to have a telephone conversation with his attorney. We do not reach the merits of this claim because it is not cognizable under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The claim would necessarily imply the invalidity of Valdez’s subsequent conviction. See id. at 486-87, 114 S.Ct. 2364; Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). Consequently, the claim is not cognizable in this litigation, but may be asserted in a petition for a writ of habeas corpus on Sixth Amendment grounds. IV. Conclusion Valdez’s constitutional rights were not violated; thus, we need not address whether the defendants were entitled to qualified immunity. The district court’s grant of summary judgment in favor of the defendants is AFFIRMED. . During his criminal proceedings, Valdez was known as Indalecio Marin, one of his many aliases. . We reject the defendants' assertion that Valdez waived this issue by failing to raise it in the district court. In fact, Valdez raised the issue and cited the relevant Alaska statute at virtually every stage in this litigation. While Valdez did not frame the issue precisely as he has done in this appeal, we liberally construe pleadings in civil rights cases. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.1992). We also consider Valdez's due process claims as being asserted against the state defendants under the Fourteenth Amendment and against the federal defendant, Rosen-baum, under the Fifth Amendment. . The Supreme Court criticized and curtailed this methodology in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In Sandin, the Court announced a new test to determine when state law creates a protected liberty interest in the prisoner context: \"[T]hese interests will be generally limited to freedom from restraint which" } ]

[ { "docid": "7801336", "title": "", "text": "concludes that the district court erred in determining, as a matter of law, that the arrest in violation of state law necessarily also constituted a violation of the Fourth Amendment. With respect to this aspect of appellee’s claims against Stone as well, then, the court below erred in granting appellee JAML, and the jury should have been allowed to determine whether the arrest was objectively reasonable under all the circumstances, including the fact that the officer lacked authority under state law to make the arrest. The City cannot be liable in connection with either the excessive force claim or the invalid arrest claim, whether on a failure to train theory or a municipal custom or policy theory, unless Officer Stone is found liable on the underlying substantive claim. See Reynolds v. City of Little Rock, 893 F.2d 1004, 1007 (8th Cir.1990), quoting City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986). For this reason, where appellee was not entitled to JAML against the police officer, the grant of JAML against the City was also erroneous. Furthermore, as to the City’s liability, the Supreme Court has stated the standards applicable to a failure to train claim as follows: [T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact ... Only where a failure to train reflects a “deliberate” or “conscious” choice by a municipality — a “policy” as defined by our prior cases — can a city be hable for such a failure under § 1983 ... Moreover, for liability to attach in this circumstance the identified deficiency in a city’s training program must be closely related to the ultimate injury. City of Canton, Ohio v. Harris, 489 U.S. 378, 388-389, 391, 109 S.Ct. 1197, 1205, 1206, 103 L.Ed.2d 412 (1989). As with the underlying substantive claim, the district court and ap-pellee appear to have concluded that the Crocker Police Department’s operation under a mistaken belief" } ]

[ { "docid": "23210566", "title": "", "text": "unconscious and showed no obvious symptoms indicating a risk of serious harm. Nothing in the record indicates that Ginn exhibited symptoms that would predict his imminent heart attack or death. 2. Sheriff Beggs and the County Martinez contends that Beggs and the county should be held liable for Ginn’s death because: (1) county policies and customs showed a deliberate indifference to the serious medical needs of intoxicated detainees, and (2) Beggs failed to adequately train and supervise officers regarding how to handle intoxicated detainees. Martinez asserts her claims against Beggs “in both his individual capacity and his official capacity,” Aplt. Br. at 19, but she does not argue that Beggs should be liable for any actions he took on May 2, 2006. Rather, Martinez contends Beggs should be held liable for the actions of the officers he trained and supervised. To the extent Martinez brings a claim against Beggs in his official capacity, it is the same as bringing a suit against the county. See, e.g., Myers v. Okla. County Bd. of County Comm’rs, 151 F.3d 1313, 1316 n. 2 (10th Cir.1998). A county or sheriff in his official capacity cannot be held “hable for constitutional violations when there was no underlying constitutional violation by any of its officers.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317-18 (10th Cir.2002) (internal quotations marks and brackets omitted). “[E]ven if,” as Martinez argues, the “policies, training, and supervision [of the individual county defendants] were unconstitutional, the [county] cannot be held liable where, as here, the officers did not commit a constitutional violation.” Trigalet v. City of Tulsa, 239 F.3d 1150, 1155-56 (10th Cir.2001); see also City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”). Likewise, Beggs cannot be held liable in his individual capacity for implementing county policies or for the actions of county officers under a theory" }, { "docid": "22123812", "title": "", "text": "Officer Davis and Deanna Ferguson.... ” Jackson’s own testimony, however, belies these assertions. On balance, applying the Graham analysis, we conclude that the use of force was not excessive in this case. Because no Fourth Amendment violation occurred, the district court properly granted summary judgment in the officers’ favor. IV A municipality may be held liable under § 1983 “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....” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See also Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.2000). A supervisor may be held liable under § 1983 if he or she was personally involved in the constitutional deprivation or a sufficient causal connection exists between the supervisor’s unlawful conduct and the constitutional violation. See Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir.1991); Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir.1989). Neither a municipality nor a supervisor, however, can be held liable under § 1983 where no injury or constitutional violation has occurred. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (holding “[i]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”); Grossman v. City of Portland, 33 F.3d 1200, 1203 (9th Cir.1994) (same). Because Jackson’s Fourth Amendment right to be free from excessive force was not violated, there is no basis upon which to find appellees liable for the alleged use of excessive force. The district court correctly rejected Jackson’s municipal liability claim against the City of Bremerton and Police Chief DuFresne. AFFIRMED. . While the test for reasonableness is often a question for the jury, this issue may be decided as a matter of law if, in resolving all factual disputes in favor of the plaintiff, the officer’s" }, { "docid": "3509428", "title": "", "text": "III. Municipal Liability Plaintiff also asserts municipal liability against the City of Harrisburg, Bureau of Police pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff summarizes his theories of municipal liability at page 39 of his brief: Here, Plaintiff has alleged that the Bureau of Police knew, prior to the shooting, that Officer Salada was not qualified to carry a firearm based on at least one prior, incident in which his weapon was discharged unexpectedly causing injury. In light of this knowledge, the Bureau of Police further failed to adequately and properly supervise and train him in the safe use of firearms, particularly in the course of making an arrest. In City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam), the United States Supreme Court held that a municipal entity cannot be held liable for failing to train or supervise an officer where there is no underlying constitutional violation by the individual officer. As the Court noted, “if a plaintiff has suffered no constitutional injury at the hands of the individual police officer, the fact that departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Heller, 475 U.S. at 799, 106 S.Ct. at 1573. In Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir.1989), the Third Circuit Court of Appeals noted that where a plaintiff’s claims focus on the harm due to the actions of municipal employees, rather than by harm directly traceable to a municipal policy itself, municipal liability claims must be dismissed where the individual officer is exonerated. Williams, 891 F.2d at 467, n. 14; see also Simmons v. City of Philadelphia, 947 F.2d 1042, 1063 (3d Cir.1991); Estate of Dawson v. Williams, No. 90-1482, 1991 WL 34304, 1991 U.S.Dist. LEXIS 2925 (E.D.Pa. March 11, 1991); Lach v. Robb, 679 F.Supp. 508, 512 (W.D.Pa.), aff'd, 857 F.2d 1464 (3d Cir.1988). Here, the court has held that defendant Salada’s conduct as described by the complaint does not state a § 1983" }, { "docid": "11408621", "title": "", "text": "train police officers only if that policy causes a violation of the plaintiffs constitutional rights. The Court, however, did not address whether municipal liability is possible if none of the inadequately trained police officers individually violates the Constitution. The district court cited City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam), to support its holding that Vineland cannot be liable unless one of the pursuing police officers is liable. In Heller, police officers were accused of making an arrest with excessive force and without probable cause. The jury returned verdicts in favor of the officers but against the city. The Court reversed the verdict against the city because it was inconsistent, stating: [N]either Monell. ... nor any other of our eases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point. Id. at 799, 106 S.Ct. at 1573 (emphasis in original). This language should not be read so broadly as to automatically preclude municipal liability absent an individual police officer’s liability. In Heller, the city and its Police Commission “were sued only because they were thought legally responsible for [Officer] Bushey’s actions.” 475 U.S. at 799, 106 S.Ct. at 1573. Once the jury determined that the arrest was lawful, there was no underlying constitutional violation for which the city or any other defendant could be held liable. In so holding, the Supreme Court was not laying down a general rule for a substantive due process claim. Apparently, the Supreme Court treated Heller as a case brought under section 1983 for violations of the Fourth Amendment. The Supreme Court characterized Heller as a case where the plaintiff “claimed damages by reason of having been arrested without probable cause and having been the victim of" }, { "docid": "6048103", "title": "", "text": "U.S.C. § 1983. 42 U.S.C. § 1983 provides a remedy against “any person” who, under color of state law, deprives another of rights protected by the Constitution. This Court’s determination that the individual police officers did not violate Mr. Phillips’ Fourth Amendment rights necessarily renders moot the issue of whether the policies of the City of Milwaukee Police Department are unconstitutional. The Supreme Court set forth the elements of a civil rights claim against a municipality in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Under Monell, a plaintiff must show (1) that he or she has suffered a deprivation of a constitutionally protected interest, and (2) that the deprivation was caused by an official policy, custom or usage of the municipality. Id. at 690-91, 98 S.Ct. at 2036. “If a person has suffered no constitutional injury at the hands of the individual police officer[s], the fact that the department regulation might have authorized the [policy in question] is quite beside the point.” City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986); see also Tom v. Voida, 963 F.2d 952, 962 (7th Cir.1992). Municipality liability does not attach unless the policy in question actually results in a constitutional violation. See City of Canton v. Harris, 489 U.S. 378, 389-92, 109 S.Ct. 1197, 1205-07, 103 L.Ed.2d 412 (1989); Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir.1994). Therefore, because the constitutional rights of Mr. Phillips were not violated, the policies of the City of Milwaukee Police Department need not be reviewed for their constitutionality. However, in the in terests of completeness, the Court opts to offer such review. A municipality is liable under 42 U.S.C. § 1983 only if the constitutional deprivation flows from a policy or custom of the local government. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2036. The failure to select or implement necessary practices can constitute a “policy or custom” for purposes of a Monell § 1983 suit, if that failure causes a" }, { "docid": "23210567", "title": "", "text": "F.3d 1313, 1316 n. 2 (10th Cir.1998). A county or sheriff in his official capacity cannot be held “hable for constitutional violations when there was no underlying constitutional violation by any of its officers.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317-18 (10th Cir.2002) (internal quotations marks and brackets omitted). “[E]ven if,” as Martinez argues, the “policies, training, and supervision [of the individual county defendants] were unconstitutional, the [county] cannot be held liable where, as here, the officers did not commit a constitutional violation.” Trigalet v. City of Tulsa, 239 F.3d 1150, 1155-56 (10th Cir.2001); see also City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”). Likewise, Beggs cannot be held liable in his individual capacity for implementing county policies or for the actions of county officers under a theory of supervisory liability, when there was no violation of Ginn’s constitutional rights. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir.2008) (explaining that supervisory liability requires a constitutional deprivation affirmatively linked to the supervisor’s personal participation). As we have concluded that the individual county defendants (Kirkland, Edwards, Brandon, and Epps) did not violate Ginn’s constitutional rights, Beggs and the county cannot be held liable as a matter of law. S. County Liability for “Systemic Injury” Martinez finally argues that if no single individual county employee is found liable, the county may still be liable for a “systemic injury” caused by “the interactive behavior of several government officials, each of whom may be acting in good faith.” Aplt. Br. at 27 (citing Owen v. City of Independence, 445 U.S. 622, 652, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980)). As evidence of a “systemic injury,” Martinez outlines the same concerns discussed above regarding lack of officer training and detention center policies (1) to not administer breath analyzer tests to people arrested for public intoxication, and (2)" }, { "docid": "6687603", "title": "", "text": "be held liable on a failure to train theory or on a municipal policy theory absent a finding that the individual police officers are liable on the underlying substantive claim. See id.; Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir.1994); Temkin v. Frederick County Comm’rs, 945 F.2d 716, 724 (4th Cir.1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992). Likewise, “[b]ecause we find that there was no constitutional violation, it is unnecessary to consider whether [the officers] w[ere] entitled to qualified immunity.” Kraushaar v. Flanigan, 45 F.3d 1040, 1049 n. 4 (7th Cir.1995) (citing Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1328 (7th Cir.1993) (Easterbrook, J., concurring)); accord Crowder v. True, 74 F.3d 812, 815 (7th Cir.1996) (per curiam). In this case, the officers’ actions did not violate any of Mr. Phillips’ constitutional rights; thus, there is no need to decide if those rights were clearly established at the time of the encounter. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Schlessinger v. Salimes, 100 F.3d 519, 523 (7th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 2481, 138 L.Ed.2d 990 (1997). C. Finally, we must address the district court’s decision to grant summary judgment on the plaintiffs’ state law claims, which include allegations of, for example, battery and wrongful death. The plaintiffs’ initial brief to this court contains no argument that the district court erred in its disposition of these claims. Rather, the plaintiffs first maintain that the district court should not have dismissed their state law claims in two pages of their reply brief. “[S]ince this argument was not clearly presented in [the plaintiffs’] initial brief to this Court, it could be deemed waived.” Arch of Illinois, Div. of Apogee Coal Corp. v. District 12, United Mine Workers of America, 85 F.3d 1289, 1294 (7th Cir.1996) (citing Wilson v. O’Leary, 895 F.2d 378, 384 (7th Cir.1990) (“All arguments for reversal must appear in the opening brief, so that the appellee may address them.”)). A necessary corollary to this principle is that" }, { "docid": "2149536", "title": "", "text": "for the unconstitutional acts of its employees if some custom or policy of the municipality was the moving force behind the constitutional violation. See Board of County Comm’rs v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Jones, as former chief of police, may be held liable in his personal capacity if he directly participated in, or if his failure to train or supervise caused, a constitutional violation. See Tilson v. Forrest City Police Dep’t, 28 F.3d 802, 806-07 (8th Cir.1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). Since Spain’s acts were objectively reasonable, however, no violation of the Fourth Amendment occurred, and there was no “deprivation of rights,” 42 U.S.C. § 1983, for which Jones or the City could be liable. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam). For the reasons stated above, we affirm the judgment of the District Court. . The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. . Since the right to be free from excessive force in the context of an arrest has been clearly established for some time, other circuits have simply held that, in excessive-force eases, the qualified-immunity inquiry and the inquiry on the merits are effectively the same. See Frazell v. Flanigan, 102 F.3d 877, 886-87 (7th Cir.1996) (collecting cases). LOKEN, Circuit Judge, concurring. I agree with the court that, viewing the undisputed facts in the light most favorable to plaintiff Robert Wilson, the actions of police officer David Spain were objectively reasonable. Therefore, defendant Spain is entitled to qualified immunity from Wilson’s individual damage claim as a matter of law. Like the district court, I would not reach the issue whether Spain is entitled to summary judgment on the merits of Wilson’s excessive force claim. I would affirm the dismissal of Wilson’s remaining claims for the reasons stated by the district court." }, { "docid": "3635484", "title": "", "text": "reject Marie Evans’ principal assignment of error. III. THE SECTION 1983 CLAIM AGAINST THE CITY Evans next argues that the district court erred in granting summary judgment on her section 1983 claim against the City of Boston. She asserts that the City exhibited deliberate indifference to individual rights both through its failure to monitor police pursuits and through its failure to supervise police officers involved in such pursuits. We need not probe Evans’ charge that the City’s policies were inadequate in these respects. As we explain below, the fact that Avery and Greene did not violate Evans’ constitutional rights means that the City is not liable to her under section 1983. This result is compelled by the Supreme Court’s decision in City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam). In that case, the plaintiff sued a police officer for making an arrest with excessive force and without probable cause; he also sued the officer’s employer, the City of Los Angeles, for promulgating a constitutionally deficient policy in regard to police officers’ use of force. The jury found for the officer but against the municipality. The district court entered judgment for the gendarme but overrode the second part of the jury’s verdict and dismissed the claim against the city; The court of appeals reversed the order of dismissal but did not disturb the judgment that had been entered in the officer’s favor. See Heller v. Bushey, 759 F.2d 1371, 1376 (9th Cir.1985). The city then appealed. The Supreme Court reinstated the dismissal, declaring that it had never authorize[d] the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point. Heller, 475 U.S. at 799, 106 S.Ct. at 1573 (emphasis in original). While Heller provides a" }, { "docid": "11408628", "title": "", "text": "under section 1983 for a substantive due process violation does not depend upon an individual officer’s liability. We draw additional support from Cannon v. Taylor, 782 F.2d 947 (11th Cir.1986). A single police officer pursued a fleeing automobile, which crashed into an innocent bystander’s automobile. The court held that the officer was not liable under section 1983 because he was merely negligent. Id. at 950. The court, however, then considered whether the defendant municipality could be liable for an alleged policy of failing to train. The court examined the evidence on record and concluded that the city’s training fell within constitutional boundaries. Id. at 950-51. Implicitly, the court concluded that municipal liability was not contingent upon any police officer’s liability. See also Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir.1992) (per curiam) (“the police chief and city might be held liable for improper training or improper procedure even if [the individual officer] is exonerated, since they put an officer on the street who is so badly trained”). We decline to follow four other courts of appeals, which have suggested that a municipality can be liable for failure to train only if one of the pursuing police officers violated the Constitution. See Temkin v. Frederick County Comm’rs, 945 F.2d 716, 724 (4th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992); Roach v. City of Fredericktown, Mo., 882 F.2d 294, 297-98 (8th Cir.1989); see also Medina v. City and County of Denver, 960 F.2d 1493, 1499-500 (10th Cir.1992) (city can be liable if pursuing officers violate Constitution but escape liability because of qualified immunity); Garner v. Memphis Police Dept., 8 F.3d 358, 364-65 (6th Cir.1993) (same), cert. denied, — U.S. -, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). None of these opinions analyzed the issue of independent municipal liability, and we therefore, find them unpersuasive. We hold that a municipality can be Hable under section 1983 and the Fourteenth Amendment for a failure to train its poHce officers with respect to high-speed automobile chases, even if no individual officer participating in the chase violated the Constitution." }, { "docid": "22991089", "title": "", "text": "McSherry argues also that Turley is liable for his allegedly false trial testimony regarding the descriptions of the interior of the residence. This claim is foreclosed by Briscoe v. LaHue, 460 U.S. 325, 326, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (holding that police officers are immune from liability under 42 U.S.C. § 1983 for perjured testimony). 3. Monell claims Because McSherry has no case against the officers, and because he tenders no facts other than their alleged personal misdeeds as evidence of a policy statement, ordinance, regulation, decision, custom, usage, or practice of either the City of Long Beach or the Long Beach Police Department that caused his injury, see Poppell, 149 F.3d at 970-71, his Monell claim also fails as a matter of law. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam) (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”); Scott v. Henrich, 39 F.3d 912, 916 (9th Cir.1994) (‘While the liability of municipalities doesn’t turn on the liability of individual officers, it is contingent on a violation of constitutional rights.”); Jackson v. City of Bremerton, 268 F.3d 646, 653-654 (9th Cir.2001) (“Neither a municipality nor a supervisor ... can be held liable under § 1983 where no injury or constitutional violation has occurred.”). This case is distinguishable from cases such as Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir.1994), where the City of Los Angeles maintained an explicit policy involving the use of biting police dogs, one of which allegedly inflicted excessive force upon the plaintiff. AFFIRMED. . Both parties have now given us their views on Beck and Hartman. . McSherry relies on Harris v. Roderick, 126 F.3d 1189, 1198-99 (9th Cir.1997) for the proposition that Turley is not entitled to immunity because he initiated the prosecution. We do not find this argument persuasive. Hams holds that if officers \"functionally served as complaining witnesses who may" }, { "docid": "9456550", "title": "", "text": "the pattern of the offense charged,” Robinson, 161 F.3d at 468 (internal quotations omitted), we conclude that the district court did not abuse its discretion in excluding this evidence. B. The District Court’s Entry of Judgment for the City Next, despite the jury’s verdict in favor of Hochstetler, Treece baldly claims that the trial court erred in entering a summary judgment thereafter in favor of the City of Naperville because, she contends, the City could still have been found independently liable based on its knowledge of Hochstetler’s acts and failure to take action thereafter. Treece’s unsupported assertion fails as a matter of law because it is well established in this Circuit that a municipality’s liability for a constitutional injury “requires a finding that the individual officer[ ][is] hable on the underlying substantive claim.” Tesch, 157 F.3d at 477. Similarly, in City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986), the Supreme Court held that: neither Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point. Id. at 799, 106 S.Ct. 1571 (emphasis added). Indeed, Heller establishes that a city’s liability is derivative of its police officer’s liability. See id. Likewise, because a jury has determined that Ho-chstetler was not liable for committing a constitutional deprivation (tort) against Treece, it is impossible under existing case law for the City to be held liable for its knowledge or inaction concerning its officer’s activity. See Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir.1997) (“Here, the Sheriffs Department cannot be found liable because [the officers’] actions did not constitute, nor did they cause," }, { "docid": "23349561", "title": "", "text": "Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam); Webber v. Mefford, 43 F.3d 1340, 1344-45 (10th Cir.1994); Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir.1988). In Heller: the Supreme Court held that a jury verdict acquitting a Los Angeles police officer of a charge of excessive force precluded the imposition of liability on the City of Los Angeles for adopting a policy eondon- ing the use of excessive force. The Court reasoned that where a municipality is “sued only because [it was] thought legally responsible” for the actions of its officers, it is “inconceivable” to hold the municipality liable if its officers inflict no constitutional harm, regardless of whether the municipality’s policies might have “authorized” such harm. Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir.1993) (quoting Heller, 475 U.S. at 799, 106 S.Ct. 1571). In this case, the jury found that Officers Sharp, Cannon, and McDonald did not use excessive force against Mr. Myers. This verdict seems to preclude a finding in favor of the plaintiffs on either of their Fourth Amendment claims against the County, because both those claims require a finding that the officers used excessive force. As noted above, the plaintiffs’ first Fourth Amendment claim is based on the straightforward theory that the officers used excessive force in attempting to take Mr. Myers into protective custody and that County policies were the moving force behind their use of such force. The plaintiffs’ second Fourth Amendment claim is that the County failed to train its officers in the use of deadly force or handling persons who are suicidal, mentally disturbed, and/or substance abusers. As the Supreme Court explained in City of Canton, 489 U.S. at 389-90, 109 S.Ct. 1197, a municipality’s failure to train is in general not enough to prove a constitutional violation. Instead, section 1983 plaintiffs can use a municipality’s failure to train as one way to make the required showing that a municipal policy or custom was the “moving force” behind an already established constitutional deprivation. See id. at 389, 109 S.Ct." }, { "docid": "22164050", "title": "", "text": "(2d Cir.1999). Rather than determine the propriety of the district court’s grant of summary judgment, our analysis is now informed by the jury verdict on the excessive force claims against officers McGee, Gloede, Weinstein and Wilson. In that verdict, the jury determined that no deprivation of plaintiffs Fourth Amendment rights had occurred. As such, the Supreme Court’s decision in City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam), is dispositive of this ease. In Heller, the jury in a bifurcated trial returned a verdict for the defendant police officer on claims of false arrest and excessive force. Id. at 797-98. In light of this verdict, the Supreme Court reasoned that no liability could attach to the City of Los Angeles and members of the Los Angeles Police Commission, who were sued as being legally responsible for the officer under an alleged unconstitutional municipal policy of using escalating force to effect arrests. The Court observed that “[i]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Id. at 799, 106 S.Ct. 1571 (emphasis removed). Following Heller, we have recognized that a municipality cannot be liable for inadequate training or supervision when the officers involved in making an arrest did not violate the plaintiffs constitutional rights. Amato v. City of Saratoga Springs, 170 F.3d 311, 320 (2d Cir.1999); Ricciuti, 124 F.3d at 132; Dodd v. City of Norwich, 827 F.2d 1, 8 (2d Cir.1987) (on reargument, vacating prior panel opinion). Heller should not, of course, be applied indiscriminately. For example, where alleged injuries are not solely attributable to the actions of named individual defendants, municipal liability may still be found. See Barrett v. Orange County Human Rights Comm’n, 194 F.3d 341, 350 (2d Cir.1999). No such concerns are raised by this case. The village is implicated in plaintiffs amended complaint only by way of the individual defendants’ conduct. Plaintiff alleges that the “policies and/or customs of [the" }, { "docid": "6687602", "title": "", "text": "this case were objectively reasonable in them handling of Mr. Phillips’ medical situation. B. Having decided that the officers did not violate the Constitution, we must con- elude that neither the City nor Police Chief Arreola can be held liable for Mr. Phillips’ death. See Thompson v. Boggs, 33 F.3d 847, 859 (7th Cir.1994), cert. denied, 514 U.S. 1063, 115 S.Ct. 1692, 131 L.Ed.2d 556 (1995). The City and Chief Arreola “were sued only because they were thought legally responsible for [the officers’] actions; if the latter inflicted no constitutional injury on [Mr. Phillips], it is inconceivable that [the former] could be liable to [the plaintiffs].” City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1572, 89 L.Ed.2d 806 (1986) (per curiam). Similarly, “[i]f a person has suffered no constitutional injury at the hands of the individual police offieer[s], the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Id. (emphasis omitted). Neither the City nor the police officers’ supervisor can be held liable on a failure to train theory or on a municipal policy theory absent a finding that the individual police officers are liable on the underlying substantive claim. See id.; Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir.1994); Temkin v. Frederick County Comm’rs, 945 F.2d 716, 724 (4th Cir.1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992). Likewise, “[b]ecause we find that there was no constitutional violation, it is unnecessary to consider whether [the officers] w[ere] entitled to qualified immunity.” Kraushaar v. Flanigan, 45 F.3d 1040, 1049 n. 4 (7th Cir.1995) (citing Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1328 (7th Cir.1993) (Easterbrook, J., concurring)); accord Crowder v. True, 74 F.3d 812, 815 (7th Cir.1996) (per curiam). In this case, the officers’ actions did not violate any of Mr. Phillips’ constitutional rights; thus, there is no need to decide if those rights were clearly established at the time of the encounter. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114" }, { "docid": "5812608", "title": "", "text": "that the individual officers did not violate plaintiffs constitutional rights; 2) denying his motion for a new trial based on the exclusion of the photographs, medical summaries, videotapes, and expert testimony; 3) denying his motion for a new trial based on the failure to give instructions relating to the use of deadly force; and 4) denying his related motion for directed verdict on the issue of deadly force. DISCUSSION The Monell Claim Underlying this entire appeal is plaintiffs position that he should not have been required to show that the individual police officers violated his constitutional rights before proceeding on the theory that the Chief and city maintained a policy that resulted in the constitutional violation of other individuals’ rights. The dispositive authority is City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)(per curiam). The Supreme Court there held that a public entity is not liable for § 1983 damages under a policy that can cause constitutional deprivations, when the factfinder concludes that an individual officer, acting pursuant to the policy, inflicted no constitutional harm to the plaintiff. Id. at 799, 106 S.Ct. at 1573; see also Palmerin v. City of Riverside, 794 F.2d 1409, 1414-15 (9th Cir.1986). In so holding, the Court said: [i]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point. 475 U.S. at 799, 106 S.Ct. at 1573 (emphasis in original). Thus, an individual may recover under § 1983 only when his federal rights have been violated. Plaintiff cites Chew v. Gates, 27 F.3d 1432, 1438, 1445 (9th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1097, 130 L.Ed.2d 1065 (1995), and Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir.1992), for the proposition that a police department may be liable under § 1983 for damages caused by unconstitutional policies notwithstanding the exoneration of the individual officer whose actions were the immediate cause of the constitutional injury. While this may be true if the" }, { "docid": "3350898", "title": "", "text": "these facts alone, the district court did not commit clear error in concluding that Mayor Green disseminated a false impression of Speer in connection with his discharge. Cf. Winegar v. Des Moines Indep. Cmty. Sch., 20 F.3d 895, 899 n. 3 (8th Cir.) (finding publication element satisfied where outside investigator was hired and students were interviewed during investigation into allegations against a teacher), cert. denied, 513 U.S. 964, 115 S.Ct. 426, 130 L.Ed.2d 340 (1994). The next question is whether a sufficient basis exists to support the district court’s decision to impose municipal liability. Relying on Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986), the City suggests that we must reverse because the district court failed to find that Mayor Green was individually liable for a violation of Speer’s constitutional rights. In Heller, the plaintiff brought a § 1983 suit against a police officer, the police commission (the officer’s employer), and the city. The plaintiff alleged that he was arrested without probable cause and that the officer used excessive force in making the arrest. The jury returned a verdict in favor of the officer, and the district court then dismissed the municipal defendants. The Supreme Court upheld the dismissal in a per curiam decision, reasoning that the municipal defendants’ alleged liability stemmed from their legal responsibility for the officer’s conduct and that a finding that the officer’s conduct was not unconstitutional obviated any possibility that the municipal defendants were subject to liability. Id. at 799, 106 S.Ct. 1571 (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”). Our court has previously rejected the argument that Heller establishes a rule that there must be a finding that a municipal employee is liable in his individual capacity as a predicate to municipal liability. See Praprotnik v. City of St. Louis, 798 F.2d 1168, 1172-73 n. 3 (8th Cir.1986), rev’d on other grounds, 485 U.S. 112, 108 S.Ct. 915, 99" }, { "docid": "14284329", "title": "", "text": "S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam), the Supreme Court held that a municipal entity cannot be held liable for failing to train or supervise an officer where there is no underlying constitutional violation by the individual officer. In Heller, police officers were accused of making an arrest with excessive force and without probable cause. The jury returned verdicts in favor of the officers but against the city. The Court reversed the verdict against the city because it was inconsistent, noting, “if a plaintiff has suffered no constitutional injury at the hands of the individual police officer, the fact that departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Heller, 475 U.S. at 799, 106 S.Ct. at 1573. See also Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir.1989) (where a plaintiffs claims focus on harm caused by the actions of municipal employees, rather than harm directly traceable to a municipal policy, municipal liability claims must be dismissed where the individual officer is exonerated). Recently the Third Circuit carefully distinguished the Heller holding from its decision which held that in certain instances a municipality can be held independently liable for violating a plaintiffs constitutional rights even if there is no individual liability on the part of the officer. In Fagan v. City of Vineland, 22 F.3d 1283 (3d Cir.1994), the Third Circuit held that in a § 1983 substantive due process claim arising out of a police pursuit, an underlying constitutional tort can still exist against the city, even if no individual officer violated the Constitution. See id. at 1292. The Fagan panel first distinguished the holding in Heller as one only arising under § 1983 for violations of the Fourth Amendment. Second, the panel noted that the liability of the city of Los Angeles in Heller was based on a theory of respondeat superior since they were sued “only because they were thought legally responsible for Bushey’s actions.” Heller, 475 U.S. at 799, 106 S.Ct. at 1573. The Court reasoned that “[o]nce the jury determined that the arrest was" }, { "docid": "6687601", "title": "", "text": "standard by which to measure the officers’ actions. That being said, although the officers’ actions here are not readily thought of as “force,” the Fourth Amendment requires that seizures be reasonable under all the circumstances; and we do think that it would be objectively unreasonable in certain circumstances to deny needed medical attention to an individual placed in custody who cannot help himself. Indeed, we have remarked before that the Fourth Amendment and the Due Process Clause impose similar duties in that both prohibit excessive force, though the duties apply at different times in the adversarial process and though the respective standards of liability may vary, primarily because the Due Process Clause contains a mental component. See Titran v. Ackman, 893 F.2d 145, 147-48 (7th Cir.1990); Wilkins v. May, 872 F.2d 190, 193 (7th Cir.1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990). Therefore, although we do not foreclose the possibility that a claim like the plaintiffs’ could be cognizable under the Fourth Amendment, we have determined that the officers in this case were objectively reasonable in them handling of Mr. Phillips’ medical situation. B. Having decided that the officers did not violate the Constitution, we must con- elude that neither the City nor Police Chief Arreola can be held liable for Mr. Phillips’ death. See Thompson v. Boggs, 33 F.3d 847, 859 (7th Cir.1994), cert. denied, 514 U.S. 1063, 115 S.Ct. 1692, 131 L.Ed.2d 556 (1995). The City and Chief Arreola “were sued only because they were thought legally responsible for [the officers’] actions; if the latter inflicted no constitutional injury on [Mr. Phillips], it is inconceivable that [the former] could be liable to [the plaintiffs].” City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1572, 89 L.Ed.2d 806 (1986) (per curiam). Similarly, “[i]f a person has suffered no constitutional injury at the hands of the individual police offieer[s], the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Id. (emphasis omitted). Neither the City nor the police officers’ supervisor can" }, { "docid": "9456551", "title": "", "text": "S.Ct. 2018, 56 L.Ed.2d 611 (1978), nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point. Id. at 799, 106 S.Ct. 1571 (emphasis added). Indeed, Heller establishes that a city’s liability is derivative of its police officer’s liability. See id. Likewise, because a jury has determined that Ho-chstetler was not liable for committing a constitutional deprivation (tort) against Treece, it is impossible under existing case law for the City to be held liable for its knowledge or inaction concerning its officer’s activity. See Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir.1997) (“Here, the Sheriffs Department cannot be found liable because [the officers’] actions did not constitute, nor did they cause, a constitutional tort.”); Thompson v. Boggs, 33 F.3d 847, 859 n. 11 (7th Cir.1994) (“Monell expressly holds that there is no cause of action for respondeat superior liability against a municipal corporation under 42 U.S.C. § 1983.”). Indeed, as we held in Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 596-97 (7th Cir.1997), [h]aving decided that the officers did not violate the Constitution, we must conclude that neither the City nor [police chief] can be held liable for [the plaintiffs] death.... [I]f the [officers] inflicted no constitutional injury on [the plaintiff], it is inconceivable that the [City and police chief] could be liable.... Neither the City nor the police officer’s supervisor can be held on a failure to train theory or on a municipal policy theory absent a finding that the individual officers are liable on the underlying substantive claim. No convincing case law has been presented to us (nor have we discovered any) that would compel us to deviate from the law as it now exists. Accordingly, because the jury returned a" } ]

[ { "docid": "5899447", "title": "", "text": "5,536], a. debt- or filed a voluntary petition in bankruptcy, in the district court for Massachusetts, alleging that he resided in Boston, and had carried on business there for fourteen months next preceding the date of his petition. After adjudication a creditor petitioned that tiie proceedings might be vacated for want of jurisdiction, on the ground that the debtor was a non-resident alien. Judge Lowell entertained the petition, holding that the adjudication might be enquired into. He further found, as a fact, that the bankrupt was domiciled in Boston when his petition was filed. But the case proceeded on the principle, that, although the bankrupt had carried on business in Boston for the statutory time next preceding the date of the filing of his petition, the court could not entertain his petition if he did not reside within the jurisdiction of the United States at such date. There are cases in the bankruptcy courts where a partner, who has never resided in the United States, in a firm the other members of which reside here, and where all of the partners have carried on business for the required period in the district in which the petition was filed, has been adjudged a bankrupt in connection with his copartners, and the copartnership property found here has been administered under such adjudication. But the question does not seem to have been considered in any published case except that of Goodfellow. I am informed by the district judge of the northern district of New York, that he has adjudged bankrupts all the members of a firm trading here, where one of its members had always resided in Canada, but that the point now under consideration was not raised before him. There seems to me to be a clear intent in the statute to put a limitation upon the power of the bankruptcy court, by enacting that it shall not assume to adjudge any person a bankrupt who is shown to be not, in fact, a resident within the jurisdiction of the United States when the petition in bankruptcy is filed; and I must" } ]

[ { "docid": "7542610", "title": "", "text": "bankruptcy act, whose property, at a fair valuation is insufficient to pa)r his debts. The partnership is considered as an entity, separate and distinct from the individual members composing it, and as said by the court in the Eertenshaw Case: “The only test was that declared by the act Itself, the insufficiency of the property of the person, the partnership, to pay the persons, the partnership’s debts.”'' The adjudication of the partnership and the administration of the partnership property in bankruptcy in no way affects the remedy which partnership creditors have against the individual partners for so much of the firm indebtedness as exceeds partnership assets. As said by the Circuit Court of Appeals in the Eertenshaw Case: “Under this act, the partnership may make an assignment or commit some other act of bankruptcy and be adjudged a bankrupt, while many of its members are solvent and cannot he so adjudged. * * * The creditors of the partnership may subject the individual property of the unadjudicated partners to the payment of their debts before, during, or after the bankruptcy proceedings. by actions at law, by suits in equity, or other proceedings, just as they may the property of indorsers upon the commercial paper of the firm, or the property of sureties, for its obligations.” It was not, therefore, necessary for the petitioning creditors in this case to allege the insolvency of the individual partners. Is it necessary that the petition should allege that the solvent partners of said concern, if any, consent to the adjudication? Section 5h of the bankruptcy act provides : “In the (went of one or .more but not all of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the partner or partners not adjudicated bankrupt; but such partner or partners not adjudicated bankrupt shall settle the partnership business its expeditiously as its naiure will permit, and account for interest of the partner or partners adjudicated bankrupt” In the Eertenshaw’ Case, supra, the court say, in reference to the foregoing clause; “The interpretation" }, { "docid": "23121081", "title": "", "text": "of any one of them, or on the petition of any creditor of the partners; upon which warrant all the joint stock and property of the company, and also all the separate estate of each of the partners, shall be taken, excepting such parts thereof as may be by law exempted from attachment; and all the creditors of the company, and the separate creditors of each partner, shall be allowed to prove their respective debts,” and that the proceeds of the respective estates should be distributed as directed by section “f” of the act of 1898. Laws Mass. 1837 — 38, p. 475, c. 163, § 21. The bankruptcy law<of 1867 adopted the same theory. It provided: “Where two or more persons who are partners in trade shall be adjudged bankrupt, either on the petition of such partners, or any one of them, or on the petition of any creditor of the partners, a warrant shall issue in the manner provided by this act, upon which all the joint stock and property of the co-partnership, and also all the separate estate of each of the partners, shall be taken.” Act March 2, 1867, c. 176, 14 Stat. 534, § 36. Under the Massachusetts insolvency law of 1838 and the bankruptcy law of 1867, it was the insolvency 'or bankruptcy of the parthers, not specified acts of bankruptcy of the partnership, that conditioned the adjudication of the partnership, and in either case where the partners were insolvent or bankrupt the partnership was judicable and all the property of the firm and of the individual partners became subject to the administration in the court of bankruptcy by the express.declaration of the acts. The question arose under the Massachusetts law whether or not the property of the partnership and of a solvent partner could be taken and administered by the court on the petition of insolvent partners, and, after at first intimating that they might be (Thompson v. Thompson, 58 Mass. 127, 132), the Supreme Judicial Court of the commonwealth finally said: “Of the four objections made to the validity of the proceedings" }, { "docid": "7542609", "title": "", "text": "said Everybody’s Grocery & Meat jltarket is insolvent. The first act of bankruptcy alleged comes within subdivision 2 of ..section 3 of the bankruptcy act (Act July 1, 1898, c, 541, 30 Stat. 546t ,[U. S- Comp. St. 1901, p. 3422]); the second act alleged comes within subdivision .1 of said section 3. If the bankrupt were an individual, .it seems, clear the allegations of the petition would be sufficient. Being a partnership, is.it necessar)' that .the petition should also state that each.individual partner is insolvent? Since the'case of In re Bertenshaw, 19 Am. Bankr. Rep. 589, 157 Fed. 363, 85 C. C. A. 61, 17 L. R. A. (N. S.) 886, decided by the Circuit Court of Appeals for this cirxuit, it is established as the law of this circuit that a partnership is insolvent if the partnership property is insufficient to pay the partner ship debts, because it is a “person” in the sense in which that term is used in the act, and because any “person” is insolvent, in contemplation of the bankruptcy act, whose property, at a fair valuation is insufficient to pa)r his debts. The partnership is considered as an entity, separate and distinct from the individual members composing it, and as said by the court in the Eertenshaw Case: “The only test was that declared by the act Itself, the insufficiency of the property of the person, the partnership, to pay the persons, the partnership’s debts.”'' The adjudication of the partnership and the administration of the partnership property in bankruptcy in no way affects the remedy which partnership creditors have against the individual partners for so much of the firm indebtedness as exceeds partnership assets. As said by the Circuit Court of Appeals in the Eertenshaw Case: “Under this act, the partnership may make an assignment or commit some other act of bankruptcy and be adjudged a bankrupt, while many of its members are solvent and cannot he so adjudged. * * * The creditors of the partnership may subject the individual property of the unadjudicated partners to the payment of their debts before," }, { "docid": "23277162", "title": "", "text": "contemplates that an adjudication of the firm imports an adjudication of all its members as well.” Does üie fact that the firm has been dissolved by the death of A. Taccaro change the necessity for such an averment and proof? -It is- said that the bankrupt court cannot administer the individual estate of the deceased partner. But quite as much, and more, might be said in respect to the individual estate of a partner not adjudged a bankrupt, for in such a case the solvent partner would not only administer his own estate, but be,entitled, under section 5, to settle up the estate of the partnership, accounting in the end for the interest of the bankrupt partner. We are unable to see that the death of one of the partners should in any wise affect the question of the insolvency of the partnership. If the estate of the. deceased is solvent, —that is, able to pay its own debts and the debts of the partnership, — the partnership cannot be said to be insolvent. In considering this question we are to bear in mind that the term “insolvency” as used in the act of 3808 and as used in the act of 1867 has not the same meaning. Under the act of 1867 it did not mean an absolute inability to pay one’s debts by the application of one’s property upon a settlement of all one’s affairs, but an inability to pay debts in ordinary course of business. Insolvency is not dependent upon whether the property liable to the creditors is in the hands of a living surviving partner or in the hands of the administrator of a dead one. The supreme test is whether the aggregate of the debtor’s property at a fair valuation is sufficient to pay the debtor’s debts. The debtor here was the partnership as such and the partner's indi-:'\\ vidually. If collectively there was property subject to partnership debts, the partnership was not insolvent. Whether a part of that property wras in the hands of an administrator is a matter of no moment. It is" }, { "docid": "2211276", "title": "", "text": "the partnership is also a separate debt of each partner, and separate debts can be discharged only after an individual adjudication, operating upon the separate estate.” Finding difficulty in applying the entity doctrine, and to avoid confusion, the judge says that: He “has consistently refused to make the adjudication of a partnership, unless all the partners be adjudged bankrupts at the same time.” Whether this is the correct view is not material here, because the “partnership entity” was, upon the petition of its creditors, adjudged “a bankrupt.” The court was not asked to adjudge the individual partners; there was no suggestion that they were insolvent, or had committed an act of bankruptcy-. Judge Lowell was of the opinion that a partnership was not “insolvent,” unless each and all of the partners were so. This discards the “entity doctrine,” with its logical results. In re Blair (D. C.) 99 Fed. 76; Vaccaro v. Security Bank, 103 Fed. 442, 43 C. C. A. 279. That this last view had not been adopted uniformly by the federal courts is manifest from an examination of a number of cases, in which the partnership has been adjudicated “a bankrupt,” exclusive of the individual partners. Judge Sanborn, in Re Bertenshaw, 157 Fed. 363, 85 C. C. A. 61, 17 L. R. A. (N. S.) 886, 13 Ann. Cas. 986, says: “Since tbe property of tbe unadjudicated, partners does not vest in, and may not be administered by, tbe trustees of tbe bankrupt partnership, tbe discharge of tbe partnership discharges that entity only from its debts, and leaves tbe partners still subject to their liability to pay tbe unpaid balance of tbe claims of tbe partnership creditors.” We are not inadvertent to the language found in the concluding sentence of the opinion of Mr. Justice Holmes in Francis v. McNeal, supra, but do not think it affects the clause quoted. Judge Sanborn was, in the Bertenshaw Case, • discussing the question regarding the administration of the estate. The language quoted is used, in the discussion, as expressing clearly what is in our minds upon the question presented" }, { "docid": "23277157", "title": "", "text": "an adjudication against one or more of its members. Thus the word “person,” as used in the act, includes a partnership. So a “partnership” may be adjudged a bankrupt during its active life or after dissolution, and before its business is settled. Again, the act declares that the court, having jurisdiction of one of the partners, may have jurisdiction of all, “and of the administration of partnership and individual property.” In Re Meyer, 39 C. C. A. 368, 98 Fed. 976, the court of appeals for the second circuit sustained an adjudication of bankruptcy against a firm as such where one of the members of the firm was dead, and where only one of two surviving partners was adjudged a bankrupt, and further held that the adjudication drew to it the administration of both the partnership assets and individual estates of the members. There is much analogy between the provisions of section 5 of the act of 1898 and the Massachusetts insolvency law of 1838, as interpreted by the Massachusetts decisions. Phillips v. Parker, 2 Cush. 175; Thompson v. Thompson, 4 Cush. 127; Dearborn v. Keith, 5 Cush. 224; Hanson v. Paige, 3 Gray, 239. The question as to whether a partnership is to be regarded as such an entity or persona as to justify an adjudication of bankruptcy against it as such, and irrespective of any adjudication of bankruptcy against its individual members, is one not free from difficulties, many of which are suggested by the learned opinion of Judge Hammond in 'this case. This question need not now be decided, for we are of ¡opinion that there can be no adjudication of the bankruptcy of the ¡firm of A. Vaccaro & Co., or of B. Vaccaro and A. B. Vaccaro as ¡partners, unless it is shown that the partnership and the individuals which composed the firm are insolvent. Apart from any consequences arising out of the death of A. Vaccaro, it cannot be doubted but that the insolvency of the firm and of every member would have to be averred and shown before the firm could be adjudicated" }, { "docid": "23121115", "title": "", "text": "partner. The suggestion that section 5h of the act of 1898 furnishes a conclusive argument against the power of the court to subject the property of a partner not adjudged bankrupt to the payment of the debts of his bankrupt firm involves I think a misconception of the purpose of that paragraph. It is as follows: “In the event of one or more but not all of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the partner or partners not adjudged bankrupt; but such partner or partners not adjudged bankrupt shall settle the partnership business as expeditiously as its nature will permit, and account for the interest of the partner or partners adjudged bankrupt.” It is said this paragraph means that, when a partnership has been declared bankrupt and also one or more but not all of its members, the court has no power to administer the partnership estate without the consent of the nonbankrupt members. And the argument is that, as the court has no such power, much less has it the power when actually administering the partnership estate to compel a nonbankrupt partner to bring in his individual property. But it is manifest that section 5h does not bear the construction given it. It deals with the bankruptcy of -individual partners, not with the bankruptcy of the firm. If an individual partner becomes bankrupt, it becomes important to know the effect upon the firm of which he is a member. It not infrequently happens that a firm remains solvent and prosperous, though a member becomes insolvent and commits an act of bankruptcy not chargeable to or connected with the business of the partnership. The provision for such cases is found in the paragraph quoted, and it has nothing to do with the bankruptcy of the partnership. It recognizes, however, that before the bankrupt partner receives a discharge his beneficial interest in the firm property, after the payment of firm debts, should be applied to the payment of his individual obligations. But, since his associates have" }, { "docid": "23277160", "title": "", "text": "Judge Brown of the Southern district of New York proceeded in Re Blair (C. C.) 99 Fed. 76, when he dismissed the petition of creditors of a partnership for an adjudication of bankruptcy against the firm upon an allegation that the firm was insolvent, but which did not aver that the individual partners were insolvent. Upon this subject the learned judge said: “The petition must, however, further show whether any of the individual partners are solvent. As it stands, it is ambiguous in this regard. It avers that the ‘partnership is insolvent’; but other statements seem to intimate that by that averment it is intended only to state that the joint assets are nqt sufficient to pay the joint obligations. No doubt a firm is sometimes said to be insolvent when only a deficiency of joint assets is meant. But, as each partner is liable in solido for the debts of the company, so that they are debts of each individual member as much and as truly as they are debts- of the firm; a partnership cannot, with strictness, be said to be insolvent while any one of the partners is able to pay all the firm’s liabilities. Lowell, Bankr. 359; Hanson v. Paige, 3 Gray, 239, 242; In re Bennet, 2 Low. 400, 3 Fed. Cas. 209. By the express provision of section 5. moreover, the firm assets cannot be administered in bankruptcy if one of the partners is not adjudged bankrupt, unless by his consent. Bank v. Meyer (D. C.) 92 Fed. 896; In re Meyer, 39 C. C. A. 368, 98 Fed. 976. It is therefore required by rule 1 of this court that; the petition shall state whether any partner not joining in the petition is solvent or insolvent. Form 2, moreover, prescribed by the supreme court (18 Sup. Ct. xviii.), requires for an adjudication of ‘the firm’ as bankrupts a statement in the petition that ‘the partners owe debts which they are unable .to pay in full.’ This necessarily includes the individual responsibility of each, as well as their joint responsibility; and that form evidently" }, { "docid": "23121096", "title": "", "text": "individual members of the firm or company as well as the described estate of the copartnership, but the bankruptcy act contains no regulations of a corresponding character applicable in a case where an individual member of a copartnership is adjudged a bankrupt without any such decree against the copartnership or the other partner or partners of which the copartnership is composed.” Amsinck v. Bean, 89 U. S. 395, 401, 22 L. Ed. 801. But, as we have seen, the act of 1867 expressly provided that “where two or more persons who are partners in trade shall be adjudged bankrupt” — the only way in which it provided for the adjudication of a partnership — “all the joint stock and property of the copartnership and also all the separate estate of each of the partners shall be taken” and administered (14 Stat. 534, § 36), while the act of 1898 has no such provision for the taking of the separate estates upon the adjudication of the partnership. On the other hand, the act of 1898 provides for the adjudication of a partnership bankrupt without an adjudication of any of its partners bankrupt, while the act of 1867 has no such provision. Again, the act of 1898 expressly prohibits the administration of the partnership property, and by so much the more the administration of the individual property of unadjudicated partners without their consent, while the act of 1867 contained no such provision. Thus, while the act of 1867 expressly required the court which adjudged a partnership insolvent to take and administer the separate estates of the partners and thereby sustained the rule in Amsinck v. Bean, the act of 1898 contains no such requirement, but forbids not only the administration of his individual estate, but the administration of the estate of the partnership'without the consent of the unadjudicated partner (section 5h); so that the rule in Amsinck v. Bean is not only without support, but it is inhibited by the provisions of the act of 1898, and cannot prevail under it. This conclusion is supported by the actual decision rendered in Amsinck" }, { "docid": "23121097", "title": "", "text": "for the adjudication of a partnership bankrupt without an adjudication of any of its partners bankrupt, while the act of 1867 has no such provision. Again, the act of 1898 expressly prohibits the administration of the partnership property, and by so much the more the administration of the individual property of unadjudicated partners without their consent, while the act of 1867 contained no such provision. Thus, while the act of 1867 expressly required the court which adjudged a partnership insolvent to take and administer the separate estates of the partners and thereby sustained the rule in Amsinck v. Bean, the act of 1898 contains no such requirement, but forbids not only the administration of his individual estate, but the administration of the estate of the partnership'without the consent of the unadjudicated partner (section 5h); so that the rule in Amsinck v. Bean is not only without support, but it is inhibited by the provisions of the act of 1898, and cannot prevail under it. This conclusion is supported by the actual decision rendered in Amsinck v. Bean, and by the reason which the court gave. for it. The decision was that the assignees in bankruptcy of the estate of a partner could not take and administer the property of the partnership, and the reason given for it was that, while there was a provision in the act of 1867 for-the administration of the individual estate of a partner upon the bankruptcy of the partnership, there was no provision for the administration of the partnership’s estate upon the bankruptcy of an individual partner, and hence it could not be made. By the same mark the court of bankruptcy cannot take and administer the individual estate of an unadjudicated partner upon an adjudication of the bankruptcy of the partnership under the act of 1898, because, while there is a provision for the administration of the partnership estate upon the adjudication of a partner bankrupt in certain circumstances (section 5c), there is no provision in that act for the administration of the individual property of an unadjudicated partner upon an adjudication of a" }, { "docid": "2211271", "title": "", "text": "unsatisfactory conflict exists among the authorities.” Collier, Bankruptcy (11th Ed.) 181. • That a partnership is a “person,” who may be adjudged a bankrupt, either in a voluntary or involuntary proceeding, is clear — it is so declared in the act. Bankruptcy Act, § 1. This is based upon, and re-suits .from, the “partnership entity” doctrine recognized by Bankruptcy Act 1898, § 5. That an adjudication may be made of the partnership, as distinguished from, and exclusive of, the individuals composing it. Collier \"(11th Ed.) 181, and cases cited. This was done in the proceeding against the Dearing Eurniture Company — the individual members were not adjudged bankrupt. The company was the “person” adjudged bankrupt. It is insisted that, because appellant did not apply for a discharge in that case from his personal, individual liability, on account of the partnership debts, he is estopped from doing so in this proceeding. That the Bankruptcy • Act of 1898 recognizes a' partnership as a legal entity, a “person,” which owns property and owes debts as distinguished from the individual partners, is unquestionably true. Bankruptcy Act, § 5. The partnership creditors appoint the trustee, the partnership estate is administered separately from the estates of the partners, and applied to the discharge of partnership debts, which must be proven against the partnership. “A partnership being a distinct entity, it owns its property, and owes its debts, apart from the individual property of its members, which it does not own, and apart from its individual debts, which it-i does not owe. It may be adjudged bankrupt, although the partners who compose it are not so adjudicated.” Collier, Bankruptcy (11th Ed.) 168, citing many cases sustaining the text. While the decisions of the federal courts discover ^ome divergence of opinion regarding the'administration of estates of partnerships, and the individual partners, when all, or several, of them are also adjudicated, the question presented, upon this appeal has not, so far as our investigation goes, been discussed or decided. Whatever confusion of thought, either- real or apparent, is found in the decisions, in dealing with bankruptcy proceedings, wherein" }, { "docid": "23121082", "title": "", "text": "and also all the separate estate of each of the partners, shall be taken.” Act March 2, 1867, c. 176, 14 Stat. 534, § 36. Under the Massachusetts insolvency law of 1838 and the bankruptcy law of 1867, it was the insolvency 'or bankruptcy of the parthers, not specified acts of bankruptcy of the partnership, that conditioned the adjudication of the partnership, and in either case where the partners were insolvent or bankrupt the partnership was judicable and all the property of the firm and of the individual partners became subject to the administration in the court of bankruptcy by the express.declaration of the acts. The question arose under the Massachusetts law whether or not the property of the partnership and of a solvent partner could be taken and administered by the court on the petition of insolvent partners, and, after at first intimating that they might be (Thompson v. Thompson, 58 Mass. 127, 132), the Supreme Judicial Court of the commonwealth finally said: “Of the four objections made to the validity of the proceedings the first only has presented any difficulty. That is, that it was not alleged in the petition that the partners, in their individual capacity, were insolvent. A preliminary question was made whether such allegation was necessary. We cannot doubt that there must be a substantial averment of this fact; for, if one of the partners were solvent, such solvent partner would have the legal right of settling the affairs of the partnership, and the commissioner would have no power to take by his warrant the partnership property out of his hands. Again, as each partner is liable in solido for the debts of the company, a partnership cannot with strictness be said to be insolvent while any of the partners are able to pay its debts.” Hanson v. Paige, 69 Mass. 239, 242. If .the court under the Massachusetts law, which treated the partnership as an aggregation of partners and not as a distinct entity, and which contained no express provision that the partnership property should not be administered in the court without the consent" }, { "docid": "23277156", "title": "", "text": "the firm was Hable in solido for the firm debts. It is true that in equity the individual debts of a partner are entitled to be first paid out of indi vidual property, and firm debis out of partnership property; but in each case the surplus after providing for the preferred debt is applicable to the payment of debts of the other class. This, too, is the order of payment prescribed by section 5 of the bankrupt act of '898. The creditors of the firm of A. Vaccaro & Go. could, therefore, appropriate to the payment of their debts the entire joint assets and the surplus of the individual estates of each member of the firm ‘after deducting exemptions, dower, etc. There is much in the present act which tends strongly to sustain the contention that a part ner'ship is to be regarded as a persona or legal entity capable of committing an act of bankruptcy in its character as a firm, and of being declared bankrupt as such, although- no ground might exist for an adjudication against one or more of its members. Thus the word “person,” as used in the act, includes a partnership. So a “partnership” may be adjudged a bankrupt during its active life or after dissolution, and before its business is settled. Again, the act declares that the court, having jurisdiction of one of the partners, may have jurisdiction of all, “and of the administration of partnership and individual property.” In Re Meyer, 39 C. C. A. 368, 98 Fed. 976, the court of appeals for the second circuit sustained an adjudication of bankruptcy against a firm as such where one of the members of the firm was dead, and where only one of two surviving partners was adjudged a bankrupt, and further held that the adjudication drew to it the administration of both the partnership assets and individual estates of the members. There is much analogy between the provisions of section 5 of the act of 1898 and the Massachusetts insolvency law of 1838, as interpreted by the Massachusetts decisions. Phillips v. Parker, 2" }, { "docid": "23121095", "title": "", "text": "Yick Co., 13 Am. Bankr. Rep. 757, 758, in which may be found an obiter dictum which cites the dictum in the Meyer Case, in a proceeding where the only question was whether the petition in bank ruptcy was sufficient to warrant an adjudication of the partnership. The views of the judges who have expressed their opinions in these cases in which they did not, and could not, adjudge the question here at issue, to the effect that an adjudication of the 'bankruptcy of a partnership drew into the court of bankruptcy the administration of the individual property of solvent and unadjudicated partners, appear to have been inspired by the following paragraph which fell from the Supreme Court in 1874, after it had referred to the bankruptcy act of 1867 and some of its provisions which were before it for consideration: “These regulations [said the court] show that in cases where they apply the assignees in bankruptcy of the joint stock and property of a copartnership are required to administer the separate estate of the individual members of the firm or company as well as the described estate of the copartnership, but the bankruptcy act contains no regulations of a corresponding character applicable in a case where an individual member of a copartnership is adjudged a bankrupt without any such decree against the copartnership or the other partner or partners of which the copartnership is composed.” Amsinck v. Bean, 89 U. S. 395, 401, 22 L. Ed. 801. But, as we have seen, the act of 1867 expressly provided that “where two or more persons who are partners in trade shall be adjudged bankrupt” — the only way in which it provided for the adjudication of a partnership — “all the joint stock and property of the copartnership and also all the separate estate of each of the partners shall be taken” and administered (14 Stat. 534, § 36), while the act of 1898 has no such provision for the taking of the separate estates upon the adjudication of the partnership. On the other hand, the act of 1898 provides" }, { "docid": "23121099", "title": "", "text": "partnership bankrupt, and there is an express prohibition of the administration of the partnership estate in such a case without the consent of the solvent partner (section 5h), and by so much the more an inhibition of the administration of his individual estate without his consent. The decisions to the effect that the bankruptcy of a partnership do not necessarily draw to the court of bankruptcy the administration of the individual estates of the partners (In re Stein & Co., 11 Am. Bankr. Rep. 536, 539, 127 Fed. 547, 62 C. C. A. 272; In re Duguid, 3 Am. Bankr. Rep. 794, 799, 100 Fed. 274; Strause v. Hooper [D. C.] 105 Fed. 590, 592; In re Blair [D. C.] 99 Fed. 76, 79) accord with this position, and the conclusion is that a court of bankruptcy upon an adjudication of a partnership bankrupt may not draw to itself and administer without his consent the individual estate of a solvent partner who has not been adjudicated a bankrupt. The petition to revise must accordingly be dismissed; and it is so' ordered. HOOK, Circuit Judge (dissenting). A partnership composed of three members, having made a general assignment for the benefit of creditors, was adjudged bankrupt in an involuntary proceeding. In such a case it was not necessary that the partnership should have been insolvent (Act 1898, § 3a [4] ; West Company v. Lea, 174 U. S. 590, 19 Sup. Ct. 836, 43 L. Ed. 1098), and for the same reason the financial condition of the partners individually was immaterial and was not inquired into. It may be said, however, in view of subsequent proceedings, that the firm assets were barely sufficient to pay 5 per cent, of its debts. None of the individual partners were adjudged bankrupt. The validity of the adjudication is not attacked. It is expressly conceded in the brief of counsel that the court had jurisdiction of the parties and of the subject-matter. At the end of the order of adjudication is this clause: “if Is further ordered this adjudication binds only the partnership entity, and not" }, { "docid": "23121114", "title": "", "text": "Second Circuit, said: “We are of tbo opinion that it is the scheme of these provisions to treat the partnership as an entity which may be adjudged a bankrupt by voluntary or involuntary proceeding, irrespective of any adjudication of the individual partners as bankrupt, and upon an adjudication to draw to the administration the individual estates of the partners as well as the partnership estate, and marshal and distribute them according to equity.” This may not have been strictly necessary to a decision of the point involved, but I think the opinion, including the above excerpt, is a clear exposition of those parts of the present bankruptcy act which relate to the administration of partnership estates. The precise point arose and was decided by Judge McPherson of the Eastern District of Pennsylvania. In re Stokes (D. C.) 106 Fed. 312. He held that upon a partnership adjudication the assignee in insolvency of an individual partner who had not been adjudged bankrupt could be compelled to surrender to the bankruptcy court the individual property of such partner. The suggestion that section 5h of the act of 1898 furnishes a conclusive argument against the power of the court to subject the property of a partner not adjudged bankrupt to the payment of the debts of his bankrupt firm involves I think a misconception of the purpose of that paragraph. It is as follows: “In the event of one or more but not all of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the partner or partners not adjudged bankrupt; but such partner or partners not adjudged bankrupt shall settle the partnership business as expeditiously as its nature will permit, and account for the interest of the partner or partners adjudged bankrupt.” It is said this paragraph means that, when a partnership has been declared bankrupt and also one or more but not all of its members, the court has no power to administer the partnership estate without the consent of the nonbankrupt members. And the argument is that, as" }, { "docid": "2211275", "title": "", "text": "for cutting off all the consequences admitted to attach to partnerships, elsewhere than in the bankruptcy courts.” The liability of the “person” — the partnership — for partnership debts may be enforced by subjecting the partnership property to their payment, when this “person” has been adjudicated a bankrupt; such “person” may, upon complying with the provisions of the act, be discharged from its debts. This discharge is not granted to the individual partners, “trading” or “carrying on business” as partners, but to the partnership, a legal entity. This discharge has no effect upon the individual liability of the partners. It has been uniformly held that in a proceeding by a partnership, in which the individuals are not adjudicated bankrupt, they are not entitled to a discharge. In re Hale (D. C.) 107 Fed. 432. Judge Lowell, in Re Forbes (D. C.) 128 Fed. 137, discussing the “partnership entity” doctrine, says: * “Under an adjudication merely joint, it is impossible to discharge the partners as individuals, even from their joint debts, for every joint debt of the partnership is also a separate debt of each partner, and separate debts can be discharged only after an individual adjudication, operating upon the separate estate.” Finding difficulty in applying the entity doctrine, and to avoid confusion, the judge says that: He “has consistently refused to make the adjudication of a partnership, unless all the partners be adjudged bankrupts at the same time.” Whether this is the correct view is not material here, because the “partnership entity” was, upon the petition of its creditors, adjudged “a bankrupt.” The court was not asked to adjudge the individual partners; there was no suggestion that they were insolvent, or had committed an act of bankruptcy-. Judge Lowell was of the opinion that a partnership was not “insolvent,” unless each and all of the partners were so. This discards the “entity doctrine,” with its logical results. In re Blair (D. C.) 99 Fed. 76; Vaccaro v. Security Bank, 103 Fed. 442, 43 C. C. A. 279. That this last view had not been adopted uniformly by the federal courts" }, { "docid": "23277161", "title": "", "text": "partnership cannot, with strictness, be said to be insolvent while any one of the partners is able to pay all the firm’s liabilities. Lowell, Bankr. 359; Hanson v. Paige, 3 Gray, 239, 242; In re Bennet, 2 Low. 400, 3 Fed. Cas. 209. By the express provision of section 5. moreover, the firm assets cannot be administered in bankruptcy if one of the partners is not adjudged bankrupt, unless by his consent. Bank v. Meyer (D. C.) 92 Fed. 896; In re Meyer, 39 C. C. A. 368, 98 Fed. 976. It is therefore required by rule 1 of this court that; the petition shall state whether any partner not joining in the petition is solvent or insolvent. Form 2, moreover, prescribed by the supreme court (18 Sup. Ct. xviii.), requires for an adjudication of ‘the firm’ as bankrupts a statement in the petition that ‘the partners owe debts which they are unable .to pay in full.’ This necessarily includes the individual responsibility of each, as well as their joint responsibility; and that form evidently contemplates that an adjudication of the firm imports an adjudication of all its members as well.” Does üie fact that the firm has been dissolved by the death of A. Taccaro change the necessity for such an averment and proof? -It is- said that the bankrupt court cannot administer the individual estate of the deceased partner. But quite as much, and more, might be said in respect to the individual estate of a partner not adjudged a bankrupt, for in such a case the solvent partner would not only administer his own estate, but be,entitled, under section 5, to settle up the estate of the partnership, accounting in the end for the interest of the bankrupt partner. We are unable to see that the death of one of the partners should in any wise affect the question of the insolvency of the partnership. If the estate of the. deceased is solvent, —that is, able to pay its own debts and the debts of the partnership, — the partnership cannot be said to be insolvent. In" }, { "docid": "23121091", "title": "", "text": "legislative body makes no exception to, or restriction upon a general provision, it is not the province of the courts to do so. The interpretation of this clause, therefore, is that where a partnership has committed an act of bankruptcy, and where it has been adjudged bankrupt as well as where it has not, and one or more, but not all, of its members, have been adjudged bankrupts, the partnership may not be administered in bankruptcy without the consent of the partner or partners who are not adjudged bankrupt (In re Blair [D. C.] 99 Fed. 76, 79; Vaccaro v. Security Bank, 103 Fed. 436, 443, 43 C. C. A. 279, 286), and it is in accord with an established practice in equity which governs the administration of the affairs of insolvent partnerships when some of their partners are solvent (Hanson v. Paige, 3 Gray [Mass.] 239, 242). The authorities upon the exact question — does the adjudication of the bankruptcy of a partnership draw into the court of bankruptcy the administration of the individual property of the members who are not adjudicated bankrupts? — are neither satisfactory nor enlightening. But one adjudication of this issue has been cited to us and that is In re Stokes (D. C.) 106 Fed. 312, in which Judge J. B. McPherson answered the question in the affirmative upon the authority of the obiter dictum found in Re Meyer, 98 Fed. 977, 39 C. C. A. 368, and summarily required the assignee for the benefit of creditors of a partner in a firm which had been adjudged bankrupt to deliver his individual property to the trustee of the estate of the partnership. It does not, however, appear in that case that this partner was solvent and the inference from the fact that he had made an assignment for the benefit of his creditors naturally is that he was not. Remarks of judges to the effect that this question should be answered in the affirmative may be found in the opinions of the courts in the following cases, but in none of them was this" }, { "docid": "2211272", "title": "", "text": "the individual partners, is unquestionably true. Bankruptcy Act, § 5. The partnership creditors appoint the trustee, the partnership estate is administered separately from the estates of the partners, and applied to the discharge of partnership debts, which must be proven against the partnership. “A partnership being a distinct entity, it owns its property, and owes its debts, apart from the individual property of its members, which it does not own, and apart from its individual debts, which it-i does not owe. It may be adjudged bankrupt, although the partners who compose it are not so adjudicated.” Collier, Bankruptcy (11th Ed.) 168, citing many cases sustaining the text. While the decisions of the federal courts discover ^ome divergence of opinion regarding the'administration of estates of partnerships, and the individual partners, when all, or several, of them are also adjudicated, the question presented, upon this appeal has not, so far as our investigation goes, been discussed or decided. Whatever confusion of thought, either- real or apparent, is found in the decisions, in dealing with bankruptcy proceedings, wherein partnerships are parties, relates to questions of adjustment of priorities and administration. That Congress did not intend, by introducing the “partnership entity doctrine” into the Bankruptcy Law of 1898, based upon equitable principles applied in administering estates of insolvent partnerships, to disturb the relation of partners to the debts of the partnership, or change their liability, is pointed out by Mr. Justice Holmes in Francis v. McNealp 228 U. S. 695, 33 Sup. Ct. 701, 57 L. Ed. 1029, L. R. A. 1915E, 706. He says: “Since Gory on Accounts was made more famous by Bindley on Partnership, the notion that the firm is an entity, distinct from its members, has grown in popularity, and the notion has been confirmed by recent speculations as to the nature of corporations, and the oneness of any somewhat permanently combined group, without the aid of law. But the fact- remains as true as ever that partnership debts are debts of the members of the firm, and that the individual liability of the members is not collateral, like that" } ]

[ { "docid": "20649684", "title": "", "text": "in boxes located on the back seat. . Both searches must be judged by exceptions to the warrant requirements since the subsequently-obtained search warrant is conceded to be defective because the police failed to return the warrant and affidavit to the Justice of the Peace. . See also, Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). . “[Our] legal system . . . regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 470, 91 S.Ct. 2022, 2040 (1971). . See, Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. . There are circumstances where probable cause to arrest exists but probable cause to search is lacking. In Preston v. United States, supra, the defendants were arrested for vagrancy. While the court found that the arrest was valid, there could be no probable cause to search because there are no fruits or instrumentalities of the “crime” or vagrancy subject to seizure. Likewise, in Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538, the court found that there was no probable cause to search a car, the occupants of which had been arrested for reckless driving. The court stated that the Carroll line of eases insisted that the searching officers have “ ‘probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.” Id. at 221, 88 S.Ct. at 1475. It should be noted that probable cause to believe that an automobile is stolen apparently will justify an immediate warrantless search. Preston v. United States, supra, 376 U.S. at 367-368, 84 S.Ct. 881. See also, Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d" } ]

[ { "docid": "879083", "title": "", "text": "of the interior of his car did not extend beyond the limits indicated in Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The warrantless search of the car trunk was justified by the principles announced in Chambers v. Maroney, 1970, 399 U.S. 42, at 50-52, 90 S.Ct. 1975, 26 L.Ed.2d 419, and followed by this Circuit in United States v. Soriano, 1974, 497 F.2d 147. The present case is closer to' Chambers v. Maroney than to Coolidge v. New Hampshire, 1971, 403 U.S. 443, at 460-464, 91 S.Ct. 2022, 29 L.Ed.2d 564, and we have not failed to observe the warning that “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears,” 403 U.S. at 461, 462, 91 S.Ct. at 2035. The judgment is Affirmed. JOHN R. BROWN, Chief Judge (specially concurring): I concur in the result and all of the opinion for the Court by Judge Rives. I think on the basis of the record, the careful treatment given the case by the Texas Court of Criminal Appeals whose opinion we quote and embrace, there was no real merit to this cause and it should have been summarily affirmed without placing the case on the calendar for oral argument." }, { "docid": "3999757", "title": "", "text": "emphasized by appellants, recognizes the well established rule that contraband illegally transported in an automobile or vehicle may be searched for, without a warrant, provided that the seizing officer has reasonable or probable cause for believing that the vehicle which he stops has contraband therein, which is being illegally transported. Coolidge, supra, p. 458, 91 S.Ct. 2022, quoting from Carroll v. United States, 267 U.S. 132, 153-156, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Here, as dis tinguished from Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), the search of the vehicle was made at the place where the vehicle was stopped and in the presence of the appellants. The officers, knowing that appellants were previously convicted felons, and having probable cause to believe that appellants were transporting guns and ammunition, had a right to stop and search the vehicle for contraband. This rule was recognized as early as Carroll v. United States, supra. The right to search and the validity of the seizure in such case is not dependent upon the right to arrest. This right is dependent on the reasonable belief of the seizing officers that the contents of the automobile offend against the law. The Carroll doctrine was recognized and approved as recently as Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), where it is said, “In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office.” Chambers, p. 48, 90 S.Ct. p. 1979. Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), recognizes the same principle, as does Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). There is nothing in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), purporting to modify or in any way affect the rationale of Carroll. For that matter, the Chimel court recognized the principles stated in Carroll and Brinegar. See 395 U.S. 752, 764, n. 9, 89 S. Ct. 2034." }, { "docid": "23403293", "title": "", "text": "note that Richards was in lawful possession of the package when it was seized. Cf. Rakas v. Illinois, 439 U.S. at 153, 99 S.Ct. at 435, 58 L.Ed.2d at 407 (Powell, J., concurring) (“property rights reflect society’s explicit recognition of a person’s authority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual’s expectations of privacy are reasonable”). It is, therefore, not dispositive that Richards denied ownership of the package. Considering all the circumstances, we conclude that he had a legitimate expectation that the contents of the package were private, and has standing to assert fourth amendment protection. B. Border Search Under the fourth amendment, all warrantless searches and seizures are unreasonable except those conducted in a few narrowly defined situations where the circumstances justifying the search outweigh privacy rights. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Sink, 586 F.2d 1041 (5th Cir. 1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979). Because the fourth amendment expressly prohibits only unreasonable warrantless searches, it patently incorporates a balancing test, weighing in one measure the level of intrusion into individual privacy and in the other the public interest to be served. United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116, 1126-1127 (1976); United States v. Himmelwright, 551 F.2d 991, 994 (5th Cir.) cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Thus, a warrantless search is justified when it is incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); when it is conducted with probable cause under exigent circumstances, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); when it involves a vehicle, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); or when it is made for administrative purposes to satisfy a special governmental need and necessity outweighs the invasion entailed, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d" }, { "docid": "879082", "title": "", "text": "for all of the stolen property, independent of the search incidental to arrest, provided they were not required by law to first secure a search warrant under the circumstances. “If the officers had left the car unattended on the public street or alley, it could have been easily moved out of the locality or jurisdiction by a friend, relative, confederate, or even by the appellant himself if he had secured his release on bail -prior to the time the officers could have executed a written affidavit and contacted a magistrate. It should be remembered that the incident in question occurred at approximately 1:50 a. m. Clearly, exigent circumstances were presented which would have justified the warrantless search, there being probable cause to search. “If the car had been placed under guard or removed and impounded at the police station until a search warrant had been procured, then this intrusion would have been just as great as the warrantless search of the car trunk in the alley.” 493 S.W.2d 770-771. The search of Fry’s person and of the interior of his car did not extend beyond the limits indicated in Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The warrantless search of the car trunk was justified by the principles announced in Chambers v. Maroney, 1970, 399 U.S. 42, at 50-52, 90 S.Ct. 1975, 26 L.Ed.2d 419, and followed by this Circuit in United States v. Soriano, 1974, 497 F.2d 147. The present case is closer to' Chambers v. Maroney than to Coolidge v. New Hampshire, 1971, 403 U.S. 443, at 460-464, 91 S.Ct. 2022, 29 L.Ed.2d 564, and we have not failed to observe the warning that “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears,” 403 U.S. at 461, 462, 91 S.Ct. at 2035. The judgment is Affirmed. JOHN R. BROWN, Chief Judge (specially concurring): I concur in the result and all of the opinion for the Court by Judge Rives. I think on the basis of the record, the careful treatment given the case by" }, { "docid": "23162623", "title": "", "text": "warrant, the government assumes the burden of persuasion that at least one of the narrow exceptions to the Fourth Amendment warrant requirement applies to this case. The Government does not here suggest that a warrant was not needed because the officers were engaged in “hot pursuit,” Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967); nor does it attempt to justify the warrant-less search under the “plain view” doctrine, Coolidge v. New Hampshire, supra. Moreover, the record does not disclose a fact pattern similar to the emergency situation which justified the warrantless intrusion in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); nor, of course, does this case demand application of the special rules pertaining to searches of automobiles, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). We are left, then, with only two possible theories under which the warrantless search involved here may be upheld: that the search was legal because voluntarily consented to by Mrs. Walters, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); or that the search was valid because incident to a lawful arrest within the meaning of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L. Ed.2d 685 (1969). 1. Consent Although each case must turn on its own facts, see e. g. United States v. Gaines, 441 F.2d 1122, 1123 (2 Cir. 1971), the overarching principles which govern the. law of consent are clear. Consent to a search, and the waiver of Fourth Amendment rights which it implies, must be “freely and voluntarily given,” Bumper v. North Carolina, supra, 391 U.S. at 548, 88 S.Ct. 1788. The'government bears the burden of proving waiver, a burden which is discharged only upon a showing of clear and convincing evidence, United States v. Marotta, 326 F.Supp. 377, 380 (S.D. N.Y.1971), affirmed in open court, 456 F.2d 1336 (2 Cir. 1972); United States v. Lewis, 274 F.Supp. 184, 187 (S.D.N." }, { "docid": "4368698", "title": "", "text": "all of the United States Supreme Court decisions relating to the validity of searches and seizures after a lawful arrest. It has been said that a valid search and seizure incident to a lawful arrest can be made only when it is “substantially contemporaneous with arrest . . . . ” Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); see also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). It has also been held that “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” United States v. Edwards, supra, citing Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Some of these cases seem to turn on the question of whether the search, under the circumstances, was reasonable. Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L.Ed.2d 730 (1967). This question does not necessarily arise here because if the opening of the trunk to afford Roe’s traveling companions an opportunity to obtain their personal effects is to be considered a search, it was made immediately after the determination to impound the automobile and the arrest of Roe. It now appears to be settled that an officer at the time of a lawful custodial arrest may, without a warrant, make a “full” search of the person of the accused, a limited area within the control of the person arrested, and of an automobile in his possession at the scene of the arrest for the discovery and preservation of criminal evidence. United States v. Edwards, supra; United States v. Robinson, supra, Gustafson v. Florida, supra, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Cf. Cupp v. Murphy," }, { "docid": "8674120", "title": "", "text": "These searches were not searches of an automobile. See Chambers v. Ma-roney, 399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed.2d 419 (1970); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L. Ed.2d 1067 (1968); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). 2) These searches were not incident to lawful arrests. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). 3) These searches were not based on the plain view doctrine. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). 4) They were not based on consent. See Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L.Ed.2d 684 (1969); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477, rehearing granted and reversed on other grounds, 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947). 5) They were not based upon an immediate threat to life. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968); Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963); United States v. Barone, 330 F.2d 543 (2d Cir. 1964). 6) They did not occur while the officers were in hot pursuit of a fleeing felon. See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). On this point our court adheres unanimously to the view of such exceptions recently stated by Mr. Justice Stewart in his opinion for the Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971): “Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge" }, { "docid": "3999758", "title": "", "text": "dependent upon the right to arrest. This right is dependent on the reasonable belief of the seizing officers that the contents of the automobile offend against the law. The Carroll doctrine was recognized and approved as recently as Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), where it is said, “In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office.” Chambers, p. 48, 90 S.Ct. p. 1979. Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), recognizes the same principle, as does Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). There is nothing in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), purporting to modify or in any way affect the rationale of Carroll. For that matter, the Chimel court recognized the principles stated in Carroll and Brinegar. See 395 U.S. 752, 764, n. 9, 89 S. Ct. 2034. We need not pass on whether the guns were seized incident to a lawful arrest or whether the guns were in plain view. We hold that there was a valid seizure of the guns and ammunition under the moving vehicle rule first recognized in Carroll. On the record before us, even the vehicle itself, was subject to seizure and forfeiture. 49 U.S.C. § 781(a)(b)(2), 49 U.S.C. § 782. United States v. Edge, 444 F.2d 1372, 1375 (CA7 1971), cert. denied 404 U.S. 855, 92 S.Ct. 101, 30 L.Ed.2d 97 (1971). In Coolidge, the vehicle had not been moved for over a week and did not fall within the Carroll doctrine. (III) Next, appellants argue that the officers had adequate time in which to apply for and secure a search warrant. Their argument is necessarily based on what the officers knew after appellants had crossed the state line, rather than the circumstances known to the officers prior to such crossing. Prior to the actual crossing, 18 U.S.C. § 922(g)(1), had not been violated by appellants. While" }, { "docid": "8370265", "title": "", "text": "he had detected the odor of marijuana. We agree with the district court's conclusion that no activity on the part of Thompson tainted the subsequent activity of Agent Clements. We therefore do not have the problem of the fruit of the poisonous tree doctrine, Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). As we said in United States v. Barrow, 363 F.2d 62, 66 (3d Cir. 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967): “The doctrine ‘excludes evidence obtained from or as a consequence of lawless official acts, not evidence obtained from an “independent source.” ’ Costello v. United States, 365 U.S. 265, 280, 81 S. Ct. 534, 542, 5 L.Ed.2d 551 (1961).” In this case, Clements’ personal detection of the smell of marijuana is the independent basis of Clements’ search. • This brings us to a consideration of what the district court properly characterized as the critical issue in the case, the Tucson Airport search by Agent Clements. In the district court the government placed great dependence upon the “border search” doctrine as justification for Clements’ warrantless search. This contention is not pressed on appeal. Rather the government relies on the “exigent circumstances” exception to the warrant requirement announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and refined in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and United States v. Menke, supra. This exception to the warrant requirement, authorized for certain automobile searches, is premised on the theory that the mobility of the automobile presents a danger that contraband will move or disappear. Justice White put it succinctly: “But when there are exigent circumstances, and probable cause, then the search may be made without a warrant, reasonably.” Chimel v. California, 395 U.S. 752, 773, 89 S. Ct. 2034, 2046, 23 L.Ed.2d 685 (1969) (dissenting). The “exigent circumstances” exception is not a per se rule to be applied indiscriminately" }, { "docid": "6439055", "title": "", "text": "owner has no knowledge of the law enforcement officer’s investigations or hunches that might lead him to believe an item is stolen. Under the provisions of § 8, the searches could be as frequent as every day, or as sparse as once a year. Having decided that § 8 does not meet the standards set out in the Biswell-Colonnade cases, we must determine whether § 8 falls within any of the traditional exceptions to the requirements of the Fourth Amendment. Warrantless searches have generally been upheld when incident to a lawful arrest [Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)]; when the articles subject to seizure are in a highly mobile vehicle [Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), recognizing exception]; when an inventory is made of an impounded vehicle [South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); United States v. Martin, 566 F.2d 1143 (10th Cir. 1977)]; when consent is given [United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)]; when the search is incident to pursuit of a suspected criminal [Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)]; when the article is in plain view of an officer having a valid reason for being where he is [Coolidge v. New Hampshire, supra]; and when a protective stop and frisk is made [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)]. It is clear that § 8 is not contemplated to fall within any of the standard exceptions. An analogy could be made to the “hot pursuit” exception. Precious metals are highly mobile and can easily be altered. However, this argument fails when the ten- day holding period is implemented. Officers have ten days in which they may determine if they have evidence to support a search warrant. Further, § 5(d)" }, { "docid": "8370266", "title": "", "text": "court the government placed great dependence upon the “border search” doctrine as justification for Clements’ warrantless search. This contention is not pressed on appeal. Rather the government relies on the “exigent circumstances” exception to the warrant requirement announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and refined in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and United States v. Menke, supra. This exception to the warrant requirement, authorized for certain automobile searches, is premised on the theory that the mobility of the automobile presents a danger that contraband will move or disappear. Justice White put it succinctly: “But when there are exigent circumstances, and probable cause, then the search may be made without a warrant, reasonably.” Chimel v. California, 395 U.S. 752, 773, 89 S. Ct. 2034, 2046, 23 L.Ed.2d 685 (1969) (dissenting). The “exigent circumstances” exception is not a per se rule to be applied indiscriminately to every automobile containing contraband, nor should it be applied to every object that has the capacity for movement. Rather, its application should depend upon an evaluation of attendant circumstances. At a very minimum there must be probable cause to make a search for contraband. In United States v. Menke, supra, 468 F.2d at 23, we noted that a critical “distinction [exists] between the holding in Coolidge with respect to non-contraband goods, and the holding in Carroll that ‘contraband goods concealed and transported in an automobile or other vehicle may be searched for without a warrant.’ 267 U.S. at 153, 45 S.Ct. at 285.” A further consideration is the reasonable possibility of the agent’s loss of dominion and control over the object to be searched and the consequential loss of the contraband contained therein. “Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must" }, { "docid": "893550", "title": "", "text": "and warrant requirements still have force in the context of such a search. There is no case which establishes the proposition that law enforcement officers in “every conceivable circumstance” may dispense with the warrant requirement in the context of an automobile search. Chambers v. Maroney, 399 U.S. 42, 50, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971). Indeed, the Government concedes as much. Appellant’s Brief at 9. Nevertheless, the Fourth Amendment requirements have been relaxed somewhat in the specific situation where the police have probable cause to search a stopped automobile and circumstances make securing a warrant impracticable. The Court has endorsed this more permissive approach on two grounds. First, the cases delineate an “exigent circumstances” exception to the warrant requirement founded upon judicial awareness of an automobile’s mobility and the often “fleeting” opportunity to conduct a search once probable cause has been obtained. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Dyke v. Taylor Implement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This Court has also recognized that it would often be unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant once they have probable cause to search. United States v. Free, 141 U.S.App.D.C. 198, 437 F.2d 631, 635 (1970). Hence, when obtainment of a warrant would unreasonably impair police efficiency by precluding the seizing of the “fleeting instant” or else unreasonably burden effective law enforcement by requiring the expenditure of valuable resources in immobilizing and watching a vehicle, the Fourth Amendment countenances an exception to the warrant requirement. Second, a different standard for automobiles has also been rationalized on the ground that individuals have a lessened expectation of privacy when traveling in autos — a car travels in" }, { "docid": "14779232", "title": "", "text": "that an automobile has been used for the transportation of contraband and is therefore subject to forfeiture, see Kaplan v. United States, 375 F.2d 895 (9th Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967); Drummond v. United States, 350 F.2d 983 (8th Cir. 1965), cert. denied, 384 U.S. 944, 86 S. Ct. 1469, 16 L.Ed.2d 542 (1966); Armada v. United States, 319 F.2d 793 (5th Cir. 1963), cert. denied, 376 U.S. 906, 84 S.Ct. 659, 11 L.Ed.2d 605 (1964), no protectible privacy interest of the car’s owner or occupants has been invaded. See Coolidge v. New Hampshire, supra, 403 U.S. at 513, 520, 91 S.Ct. 2022 (White, J., dissenting); cf. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). And, because seizure of the car was justifiable in light of its integral relationship with the crime being investigated, a contemporaneous search closely related to the reason for impounding and retaining the car, when there was probable cause to believe that the car contained fruits, in-strumentalities, or evidence of the crime, did not violate the Fourth Amendment. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Coolidge v. New Hampshire, supra, 403 U.S. at 522, 91 S.Ct. 2022 (White, J., dissenting) ; but see Harris v. United States, 125 U.S.App.D.C. 231, 370 F.2d 477, 481-483 (1966) (separate opinion of Wright, J.), aff’d, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Accordingly, the District Court erred in suppressing the items taken from the automobile. However, we agree with the District Court that the sack of money taken from behind the water heater in the apartment was unlawfully seized by the law enforcement agents. We do not accept the Government’s contention that the sack of money was properly seized incident to the arrest of the defendants under the rule stated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Court emphasized in Chimel that warrantless searches, whether or not incident to arrest, were the exception, not the rule, and that" }, { "docid": "22054945", "title": "", "text": "either could obtain a weapon from or destroy the contents of the suitcase was eliminated. The appellants argue further that since the suitcase was opened after both Papa and DiNapoli were outside of the car, the suitcase was not in the area “within [the] immediately control” of either so as to justify a search under Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). While the Government would justify the search under United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), on the broad basis that arresting officers may properly take, examine and preserve for use “the personal effects of the accused,” we need not go so far. Here the suitcase was “closely related to” the reason appellant was arrested and the reason the auto was stopped, see Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), and there was probable cause to believe, as these officers did, that the suitcase contained contraband. The Supreme Court has made it clear, moreover, that a different set of rules prevails as to searches of automobiles (as opposed to homes or offices) “provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.” Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970) (search for guns and stolen money); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); but cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (police entering upon private property to seize and search unoccupied vehicle). Here there was, as we have said, probable cause to think that the suitcase in the auto contained narcotics. The fact that Papa and appellant DiNapoli had been apprehended makes no difference, United States v. Christophe, 470 F.2d 865, 868-69 (2d Cir.), cert. denied, 411 U.S. 964, 93 S.Ct. 2140, 36 L.Ed.2d 684 (1972), for to have taken the time to obtain a warrant to search a vehicle driven by one alleged to be" }, { "docid": "23162622", "title": "", "text": "for it.’ ” Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S. Ct. at 2032 (citations omitted). The Fourth Amendment was designed to protect individual privacy and at the same time accommodate the legitimate needs of law enforcement. But “[w]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Finally, nothing in the Fourth Amendment remotely implies that officers who, for the purpose of arrest, have intruded, albeit lawfully, upon the privacy of an individual without an arrest warrant, may further invade that privacy by searching without a warrant, otherwise required by the Fourth Amendment, in derogation of law, see Coolidge v. New Hampshire, supra, 403 U.S. at 480, 91 S.Ct. 2022 (opinion of Stewart); Chimel v. California, 395 U. S. 752, 766, n. 12, 89 S.Ct. 2034, 23 L. Ed.2d 685 (1969). Absent a warrant, the government assumes the burden of persuasion that at least one of the narrow exceptions to the Fourth Amendment warrant requirement applies to this case. The Government does not here suggest that a warrant was not needed because the officers were engaged in “hot pursuit,” Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967); nor does it attempt to justify the warrant-less search under the “plain view” doctrine, Coolidge v. New Hampshire, supra. Moreover, the record does not disclose a fact pattern similar to the emergency situation which justified the warrantless intrusion in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); nor, of course, does this case demand application of the special rules pertaining to searches of automobiles, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). We are left, then, with only two possible theories under which the warrantless search involved here may be upheld:" }, { "docid": "22617229", "title": "", "text": "revolver which was not on respondent’s person and had not been found during an initial search of the car at the scene of the accident. In the trunk of the car, the officer found and seized numerous items that eventually linked respondent to the death of one Herbert McKinney and ultimately contributed to respondent’s conviction for murder. The Court begins its analysis by recognizing, as clearly it must, that the Fourth Amendment’s prohibition against “unreasonable searches and seizures” is shaped by the warrant clause, and thus that a warrantless search of private property is per se “unreasonable” under the Fourth Amendment unless within one of the few specifically established and well-delineated exceptions. Almeida-Sanchez v. United States, ante, p. 266; Katz v. United States, 389 U. S. 347, 357 (1967); Camara v. Municipal Court, 387 U. S. 523, 528-529 (1967). At the same time, the Court also recognizes that one of the established exceptions to the warrant requirement is the search of an automobile on the highway where there is probable cause to support the search and “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 U. S. 132, 153 (1925). See also Coolidge v. New Hampshire, 403 U. S. 443 (1971); Chambers v. Maroney, 399 U. S. 42 (1970); Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968). But the search of the Thunderbird plainly cannot be sustained under the “automobile exception,” for our prior decisions make it clear that where, as in this case, there is no reasonable likelihood that the automobile would or could be moved, the “automobile exception” is simply irrelevant. Coolidge v. New Hampshire, supra, at 461; Carroll v. United States, supra, at 156. Another established exception to the warrant requirement is a search incident to a valid arrest. Chimel v. California, 395 U. S. 752 (1969). But the search of the Thunderbird cannot be sustained under this exception, because even assuming that such a search would have been" }, { "docid": "14673592", "title": "", "text": "the place to be searched, and the persons or things to be seized.” “The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.” Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). See also Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is universally accepted that “the police must, .whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, supra, 392 U.S. at 20, 88 S.Ct. at 1879. Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, except in “a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Among the exceptions arguably relevant to this case are searches for evidence in plain view of a police officer justified in being where he is, Coolidge v. New Hampshire, 403 U.S. 443, 465-472, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), searches in certain exigent circumstances, Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); McDonald v. United States, 335 U.S. 451, 454-455, 69 S.Ct. 191, 93 L.Ed. 153 (1948), searches of a moving vehicle, Carroll v. United States, supra, and searches incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). In a recent case, United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973), the Supreme Court held that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” No amount of probable cause can justify a warrantless search or seizure absent one of the exceptions. Coolidge v. New Hampshire, supra, 403" }, { "docid": "12224923", "title": "", "text": "miles from the arrest scene. “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), quoting Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) and citing Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). Neither can the search be justified upon the basis that a warrant-less search would have been proper and that therefore a search under a warrant, however wrongly or defectively issued, was permissible. It does seem inconceivable that, if a warrantless search would have been proper, a search with a warrant, however improvidently granted, would be unreasonable. Warrantless searches of automobiles are approved, but they find their validity in the existence of probable cause and the exigencies of the moment arising from the mobility of the vehicle. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Chimel v. California, 395 U.S. 752, 764 n. 9, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). “Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence, an immediate search is constitutionally permissible.” Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The fact that the automobile had been moved to a different place would not necessarily eliminate the propriety of a search without a warrant. Probable cause may continue to exist and the mobility of the automobile may make even a warrantless search proper, according to the Chambers case. In the present case, however, mobility of the ear can hardly be said to have been a viable factor. The car had been disabled by the sheriff, he had possession of the keys, it was in a place under his control, and the car was locked." }, { "docid": "6313081", "title": "", "text": "decisions are based upon a highly technical construction of the meaning of “search,” unwarranted in our view of the Fourth Amendment. To consider an inventory procedure not to be a “search” does violence to the concept of the Fourth Amendment as a protection of the privacy of the citizenry against unwarranted invasion by government officials. As noted in Terry v. Ohio, 392 U.S. 1, 18 n. 15, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968): In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. * * * This seems preferable to an approach which attributes too much significance to an overly technical definition of “search” * * *. See also, Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967): It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. The Supreme Court has not decided whether an inventory procedure is a search. In Cady v. Dombrowski, supra, a footnote to the majority opinion noted the question and stated it would not decide the issue as petitioner had conceded the intrusion constituted a search. Harris v. United States, supra, indicates that it would be regarded as a search. The police procedure involved in this case, be it denominated an “inventory” or a “search,” involves a substantial invasion of the owner’s privacy. To suggest that the exploration of the owner’s property by the police, merely because it happens to be in the custody of the police is not a search would substantially erode Fourth Amendment protections. “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-462, 91 S.Ct. 2022, 2035, 29 L. Ed.2d 564 (1971). The operation or possession of" }, { "docid": "22580148", "title": "", "text": "U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. United States District Court, 407 U.S. 297, 315-16, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, supra, 403 U.S. at 454-55, 479, 91 S.Ct. 2022; Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). It is apparent from Watson and Santana that the same cannot be said regarding arrests in public places based upon probable cause. In this case, however, we consider not the constitutionality of an arrest in a public place but that of an arrest in an intrinsically private place — the home. This calls to the fore significant interests which are not present when a suspect is arrested in a public place. “When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection . . . Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975). It is by now a commonplace that the Fourth Amendment protects citizens’ reasonable expectations of privacy. See Katz v. United States, supra, 389 U.S. at 351-52; id. at 361, 88 S.Ct. 507 (Harlan, J., concurring). It is also clear that one’s reasonable expectation of privacy in the home is entitled to a unique sensitivity from federal courts. See, e. g., United States v. Martinez-Fuerte, 428 U.S. 543, 561, 565, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976) (“the sanctity of private dwellings [is] ordinarily afforded the most stringent Fourth Amendment protection.”) (private dwellings involve “strong Fourth Amendment interests that justify the warrant requirement.”); South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096,49 L.Ed.2d 1000 (1976) (“less rigorous warrant requirements govern [automobile searches] because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” (footnote omitted)); United States v. United" } ]

[ { "docid": "18279564", "title": "", "text": "1242 (10th Cir.2004). It is only in “extremely limited circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record” that we will consider extra-record evidence. Id. (internal quotations omitted). We may also delve outside the administrative record when there is a “strong showing of bad faith or improper behavior.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In dealing with scientific and technical evidence, extra-record evidence “may illuminate whether an [environmental impact statement] has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism ... under the rug.” Lee, 354 F.3d at 1242 (internal quotations omitted). We review a district court’s determination of whether or not to exclude extra-record evidence for abuse of discretion. Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078, 1089 n. 2 (10th Cir.2004) (citing Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998)). To support its claim the administrative record should be supplemented, Citizens contends water flow data for the Magenta was concealed and misrepresented. Relying on the allegations contained in Dr. Phillips’s 1999 affidavit, Citizens claims the studies based on this misrepresentation led the government to wrongly assume the Culebra was the most transmissive geological layer in the storage facility’s proximity. As a result, DOE decided it need not model the transmissive properties of the Magenta layer. Citizens argues that Dr. Phillips’s charges satisfy its obligation to make “a strong showing that DOE engaged in bad faith and improper conduct,” and therefore additional evidence should be .produced in the administrative record. Aplt. Brief at 19. We disagree. Upon examining Dr. Phillips’s affidavit, we find nothing to justify the inclusion of extra-record evidence to demonstrate gaps or inadequacies in the SEIS-II. Dr. Phillips makes two claims of misrepresentation. First, he asserts he discovered a document as part of his research that evidences tampering with a hydrology report relied on by DOE. He supports this allegation by pointing to" } ]

[ { "docid": "13440126", "title": "", "text": "“the initial decisionmaker on the import permit applications at issue.” Van Norman Decl. ¶2 [27-1]. He states that the Service neither directly nor indirectly considered any of the Safari Club materials identified by plaintiffs. Id. at ¶¶ 4-10. Specifically, he declares that the Service “did not consult or rely upon the withdrawn guidelines” at issue in Safari Club when making the permit decisions in the present case. Id. at ¶ 7. The Service further argues that plaintiffs provide no evidence that Safari Club is mentioned in the record. Defs.’ Opp’n at 11 [27]. The Court does not find supplementation of the record appropriate. Plaintiffs have not provided the concrete evidence necessary to overcome the strong presumption of regularity owed to the Service. Plaintiffs cannot merely assert that the Safari Club materials were relevant or were before the Service when it made its decisions. See Sara Lee Corp., 252 F.R.D. at 34; Pac. Shores, 448 F.Supp.2d at 6. Indeed, neither the materials’ purported relevance nor plaintiffs’ references to Safari Club during the permitting process constitute concrete evidence that the Service considered the materials, either directly or indirectly. Further, as courts in this District have held, references to documents in the administrative record do not prove that that the documents were “before” the deciding agency. WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 6 (D.D.C.2009) (finding that the mere mention of a document in the record does not “indicate consideration of [its] contents”); Cape Hatteras, 667 F.Supp.2d at 114 (finding that references to a biological opinion in the record do “not prove that it was before the agency when it made its decision”). Plaintiffs thus can not merely argue that Safari Club is mentioned in the record. Rather, they must offer non-speculative grounds for their belief that the Service actually considered the Safari Club materials. See Pac. Shores, 448 F.Supp.2d at 6. The evidence shows that the Service withdrew the Safari Club guidelines fifteen years ago and has not used them since. Withdrawal of Proposed Guidelines on African Elephant Sport-hunted Trophy Permits, 60 Fed. Reg. 12969 (Mar. 9, 1995); Van Normal Decl. ¶" }, { "docid": "2188727", "title": "", "text": "adopted as part of a formal rulemaking procedure or adjudication, nor is there any indication the agency considered its interpretation for any great length of time — it was announced only as a part of the final EIS. We do not know whether the NPS considers its interpretation binding for other purposes, despite the fact that this interpretation was announced in an EIS, after a formal notice-and-comment procedure. But as we explain below, whatever deference we give to the agency, the NPS did not violate the RMNP Act. 1. The RMNP Act and Organic Act The conflict is this: The Organic Act, 16 U.S.C. § 3, permits the killing of “detrimental animals” in national parks, but the RMNP Act, 16 U.S.C. § 198c, prohibits all hunting and killing of animals in RMNP, except animals that are dangerous to humans. The NPS argues that because it has not authorized hunting in the park, § 198c’s hunting ban is irrelevant. Wild-Earth counters that the distinction between hunting and culling is illusory and § 198c prohibits implementation of the NPS’s management plan. The problem with both parties’ arguments is that § 198c is broadly written, purporting to ban all hunting and killing of animals within RMNP. WildEarth does not argue that § 198c prohibits the NPS from killing animals in RMNP for management purposes; instead WildEarth argues that § 198c allows only the NPS to use its employees to trim herds and not volunteers. But the logic of WildEarth’s interpretation would bar any plan by the NPS that involves “hunting, or the killing, wounding, or capturing” of animals in RMNP, § 198c, even if it does not involve the use of volunteers. Therefore we must determine whether WildEarth’s interpretation of these statutes is correct. “The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975) (Powell, J., concurring). Statutes must be read as a whole and in relation to one another. United States ex rel. Sikkenga v. Regence Bluecross Blueshield of" }, { "docid": "2188733", "title": "", "text": "that any exception we read into § 198c, namely § 3’s detrimental animals exception, should also apply only to the “killing, wounding, or capturing” of animals in the park because it shows Congress did not intend to create an exception to the hunting ban. We agree that § 3 does not create an exception to the ban on hunting. To harmonize the statutes, as we did above, we read the dangerous and detrimental animals exceptions to § 198c to apply only to its prohibition on killing, capturing, or wounding animals, not to its prohibition on hunting. With these statutory considerations in mind, we turn to the NPS’s culling option. 2. Culling Versus Hunting Having determined that § 198c continues to prohibit all hunting in the park and allows only for management killing — that is, the killing of dangerous or detrimental animals at the Secretary’s discretion — we must discern what differentiates prohibited hunting from permissible management killing. WildEarth claims it is the identity of the party pulling the trigger. If an NPS employee shoots an animal, it is permissible management killing. It is not clear whether WildEarth considers an authorized contractor a permissible actor, but it strongly condemns the use of volunteer agents, regardless of the shooter’s motives or whether he or she has the NPS’s permission. The NPS, again, argues that the nature and purpose of the act determines whether an animal’s destruction is hunting or management killing, not the identity of those who carry it out. There is no support in the text of either § 3 or § 198c for WildEarth’s position. Neither § 198c’s hunting ban nor the exceptions to that ban are based on the identity of the party destroying the animal. Section 198c’s hunting ban is universal, and the exceptions to the statute’s killing, capturing, or wounding ban focus on the reason the animal is killed, rather than who kills it. Section 198c permits animals to be killed if they are dangerous to humans, and § 3 permits animals to be killed if they are detrimental to the park. And § 3 gives" }, { "docid": "14803002", "title": "", "text": "consider an adjudicative fact subject to judicial notice that is not part of the administrative record if it qualifies for supplementation as extra-record evidence under Esch v. Yeutter, 876 F.2d 976 (D.C.Cir.1989). See Cnty. of San Miguel, 587 F.Supp.2d at 78-79 (noting that when plaintiffs asked court to take \"judicial notice” of a government report when reviewing an agency action, they actually sought “the Court to review the report as extra-record evidence,” and denying that request). Plaintiffs argue in passing that the Court should compel the Secretary to supplement the administrative record with the Scully testimony as extra-record evidence under Esch. (See Mot. at 35 n. 37.) However, plaintiffs have not demonstrated that the Secretary either \"(1) acted in bad faith in reaching [her] decision, (2) engaged in improper behavior in reaching [her] decision, (3) failed to examine all relevant factors, or (4) failed to adequately explain [her] grounds for decision.” Oceana, Inc. v. Locke, 674 F.Supp.2d 39, 45 (D.D.C.2009). That the Scully testimony is adverse to the Secretary’s ultimate position in the challenged rulemakings does not rise to the level of a \"strong showing” needed for extra-record supplementation. Id. at 46. . In their reply brief, plaintiffs ask this Court to order the Secretary to \"regenerate” the FFYs 2004-2006 administrative records \"in accordance with instructions delineating pre-decisional/deliberative privilege and requiring inclusion of relevant materials from the proposes rules.” (Reply at 4; see also id. at 3-6.) To the extent that plaintiffs mean something more than “supplement,” the Court denies plaintiffs’ request because plaintiffs failed to seek \"regeneration” of the records in their opening brief. See Lindsey v. Dist. of Columbia, 879 F.Supp.2d 87, 95 (D.D.C.2012). . See also Blue Ocean Inst., 503 F.Supp.2d at 372 (finding that agencies need not produce a privilege log absent a \"clear command from the court of appeals, particularly in light of the unequivocal statement by that court that such [privileged] materials are not a part of the administrative record when an agency decision is challenged as arbitrary and capricious”)." }, { "docid": "2188735", "title": "", "text": "the Secretary discretion to determine how detrimental animals are to be destroyed. Nor does WildEarth satisfactorily explain why, if NPS personnel can shoot an elk without it being considered hunting, the NPS’s agents cannot do so, or can do so only if they are being paid by the NPS. Generally a principal can authorize an agent to perform any lawful act the principal can perform himself. See Phillips Petroleum Co. v. Peterson, 218 F.2d 926 (10th Cir.1954); 2A C.J.S. Agency § 129 (2012). WildEarth never explains why an authorized and carefully supervised volunteer is not subject to this rule. The more plausible distinction between hunting and management killing is the one advanced by the NPS: namely, that the difference between permissible management killing, or culling, and impermissible hunting is that the latter is the recreational pursuit of game for meat and sport, with incidental management effects on game populations, while the former is the closely supervised killing of game to control its population. This interpretation rests on the reason the animal is being killed and is consistent with the text of §§ 3 and 198c. The identity or subjective feelings of the person pulling the trigger do not matter. WildEarth argues this distinction is illusory, pointing out that some dictionaries define “hunt” broadly to include the general pursuit of wild animals or game. Oxford English Dictionary (2d ed.1989) (defining “hunt” as “to go in pursuit of wild animals or game.”). WildEarth also notes that the NPS’s own regulations define “hunting” as “taking or attempting to take wildlife,” and “taking” as “to pursue, hunt, harass, harm, shoot, trap, net, capture, collect, kill, wound, or attempt to do any of the above.” 36 C.F.R. § 1.4(a). Wild-Earth argues that because NPS regulations define “hunting” very broadly, the agency should not be allowed to assert a narrower definition here. While these definitions are broad, we do not see them as restricting the NPS’s park management under § 198c. We agree with the NPS that these definitions were not intended to apply to § 198c. Section 1.4(a) states that its definitions “shall apply to" }, { "docid": "19622586", "title": "", "text": "include: (1) when plaintiffs make a showing of agency bad faith, or (2) when the agency failed to consider \"all relevant factors\" of the decision. Id. 1. Use of Extra-Record Evidence to Evaluate Plaintiffs' Pretext Argument A court may consider extra-record evidence that is relevant to the reason for an agency action where there has been a strong showing of bad faith or improper behavior by the decision-makers. Public Power Council v. Johnson , 674 F.2d 791, 795 (9th Cir. 1982) ; Ranchers Cattlemen , 499 F.3d at 1117. In such circumstances, consideration of extra-record evidence is \"necessary to a meaningful judicial review\" of the agency's actual decision-making process. Tummino v. Torti , 603 F.Supp.2d 519, 543 (E.D.N.Y. 2009). As discussed in greater detail in Part IV.C.12, infra , the Administrative Record alone provides a \"strong showing\" of bad faith which authorizes this Court to look outside the record for further evidence of pretext. That is particularly true here, where the Administrative Record includes pre-decision communications between Secretary Ross and his \"point person\" on the citizenship question issue expressing caution about what the Administrative Record would include. PTX-96, PTX-362. 2. Defendants proceeded to submit an initial Administrative Record that mischaracterized the Secretary's decision-making process and concealed important circumstances surrounding the DOJ's request for the addition of the citizenship question. Defendants supplemented the record only after being ordered to do so in the New York matter. For these reasons, and the reasons set forth in Part IV.C.12, infra , consideration of extra-record evidence is appropriate, but not necessary, for the purpose of determining whether Secretary Ross's decision was pretextual. 2. Use of Extra-Record Evidence to Evaluate Whether Defendants Considered All Relevant Factors An agency's decision is arbitrary and capricious under the APA if, among other things, the agency failed to consider all \"relevant factors,\" Ranchers Cattlemen , 499 F.3d at 1115 ; ignored \"an important aspect of the problem,\" Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43-44, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ; or made \"an irrational departure" }, { "docid": "13440127", "title": "", "text": "evidence that the Service considered the materials, either directly or indirectly. Further, as courts in this District have held, references to documents in the administrative record do not prove that that the documents were “before” the deciding agency. WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 6 (D.D.C.2009) (finding that the mere mention of a document in the record does not “indicate consideration of [its] contents”); Cape Hatteras, 667 F.Supp.2d at 114 (finding that references to a biological opinion in the record do “not prove that it was before the agency when it made its decision”). Plaintiffs thus can not merely argue that Safari Club is mentioned in the record. Rather, they must offer non-speculative grounds for their belief that the Service actually considered the Safari Club materials. See Pac. Shores, 448 F.Supp.2d at 6. The evidence shows that the Service withdrew the Safari Club guidelines fifteen years ago and has not used them since. Withdrawal of Proposed Guidelines on African Elephant Sport-hunted Trophy Permits, 60 Fed. Reg. 12969 (Mar. 9, 1995); Van Normal Decl. ¶ 7 [27-1]. Plaintiffs’ evidence does not overcome the strong presumption that the Service properly designated its administrative record. See Pac. Shores, 448 F.Supp.2d at 6 (“It is the Corps that did the ‘considering,’ not Pacific Shores. Because Pacific Shores is unable to show by clear evidence that the Corps’ certified record is incomplete ... the Corps is entitled to the presumption that it properly designated the record.”). 2. Items 1-5 do not fall into any exceptions for extra-record review. Alternatively, plaintiffs argue that the Safari Club materials fall into several Esch exceptions for extra-record review. Specifically, they assert that the Service failed to consider factors relevant to its final decision (exception 2); that the Service considered evidence that it failed to include in the record (exception 3); that the case is so complex that the Court needs more evidence to enable it to understand the issues clearly (exception 4); that the Service is being sued for failure to take action (exception 6); and that relief is at issue (exception 8). The Service cites this Court’s" }, { "docid": "11079997", "title": "", "text": "nonetheless be included in the administrative record.” WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 5 n. 4 (D.D.C.2009); accord Styrene Info and Research Ctr., Inc. v. Sebelius, 851 F.Supp.2d 57, 63-64. Here, Plaintiffs have made clear that they move for supplementation only under the first approach. See Pls.’ Reply at 7. That is, Plaintiffs argue that the myriad of documents and data they allege are missing from the administrative record should be included therein because they were considered, either directly or indirectly, by the Secretary in connection with the challenged rulemakings. Supplementation of the record is appropriate only under three “unusual circumstances”: “(1) if the agency deliberately or negligently excluded documents that may have been adverse to its decision, (2) if background information was needed to determine whether the agency considered all the relevant factors, or (3) if the agency failed to explain administrative action so as to frustrate judicial review.” City of Dania Beach v. F.A.A., 628 F.3d 581, 590 (D.C.Cir.2010) (internal quotes and citation omitted). Further, to rebut the presumption of regularity, the party seeking supplementation must introduce “concrete evidence” to “prove” that the specific documents allegedly missing from the record were “before the actual decisionmakers” involved in the challenged agency action. Pac. Shores, 448 F.Supp.2d at 6 (quoting Sara Lee Corp. v. Am. Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C.2008)). Cf. County of San Miguel v. Kempthorne, 587 F.Supp.2d 64, 72 (D.D.C.2008) (explaining that “a party seeking to supplement the record must establish that the additional information was known to the agency when it made its decision, the information directly relates to the decision, and it contains information adverse to the agency’s decision.”). In this regard, Plaintiffs must identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents and data that are “likely” to exist as a result of other documents that are included in the administrative record. See Blue Ocean, 503 F.Supp.2d at 369 (finding that the plaintiff failed to overcome the presumption that the administrative record, was complete where the plaintiff offered no more than" }, { "docid": "19622585", "title": "", "text": "careful, however, not to substitute their own judgment for that of the agency. Suffolk Cty. v. Sec'y of Interior , 562 F.2d 1368, 1383 (2d Cir. 1977). Ultimately, a reviewing court may uphold agency action \"only on the grounds that the agency invoked when it took the action.\" Michigan v. EPA , --- U.S. ----, 135 S.Ct. 2699, 2710, 192 L.Ed.2d 674 (2015). Post hoc rationalizations may not be considered. American Textile Mfrs. Inst., Inc. v. Donovan , 452 U.S. 490, 539, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). B. Scope of Review In evaluating an APA claim, courts \"typically\" limit their review to the Administrative Record existing at the time of the decision. Sw. Ctr. for Biological Diversity v. U.S. Forest Service , 100 F.3d 1443, 1450 (9th Cir. 1996) ; accord Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric. , 499 F.3d 1108, 1117 (9th Cir. 2007). \"Under limited circumstances, however, extra-record evidence can be admitted and considered.\" Ranchers Cattlemen , 499 F.3d at 1117. These exceptions include: (1) when plaintiffs make a showing of agency bad faith, or (2) when the agency failed to consider \"all relevant factors\" of the decision. Id. 1. Use of Extra-Record Evidence to Evaluate Plaintiffs' Pretext Argument A court may consider extra-record evidence that is relevant to the reason for an agency action where there has been a strong showing of bad faith or improper behavior by the decision-makers. Public Power Council v. Johnson , 674 F.2d 791, 795 (9th Cir. 1982) ; Ranchers Cattlemen , 499 F.3d at 1117. In such circumstances, consideration of extra-record evidence is \"necessary to a meaningful judicial review\" of the agency's actual decision-making process. Tummino v. Torti , 603 F.Supp.2d 519, 543 (E.D.N.Y. 2009). As discussed in greater detail in Part IV.C.12, infra , the Administrative Record alone provides a \"strong showing\" of bad faith which authorizes this Court to look outside the record for further evidence of pretext. That is particularly true here, where the Administrative Record includes pre-decision communications between Secretary Ross and his \"point person\" on the" }, { "docid": "2188724", "title": "", "text": "public who received special training in wildlife culling and firearms use and passed a proficiency test. WildEarth contends the use of volunteers transforms the NPS’s culling into hunting, which is prohibited by the RMNP Act. In making its determination, the NPS concluded the use of volunteers would not violate the RMNP Act because the volunteers would be culling elk, and not hunting. The agency found that culling differed from hunting, which it defined as a loosely structured “recreational activity” including elements “of fair chase and personal take of the meat.” Aple. SuppApp., Vol. Ill, at 676. In contrast, culling is a highly regulated and tightly controlled activity whose primary purpose is the “efficient and humane [reduction of] herds of animals that are habituated to the presence of humans.” Id. The agency took the posi tion that its use of qualified volunteers did not transmute its culls into impermissible hunts because the purpose and structure of the culls distinguished them from hunting, regardless of who participated. The RMNP Act provides in relevant part: “All hunting or the killing, wounding, or capturing at any time of any wild bird or animal, except dangerous animals when it is necessary to prevent them from destroying human lives or inflicting personal injury, is prohibited within the limits of [RMNP]....” 16 U.S.C. § 198c. But the National Park Service Organic Act (Organic Act) states: “The Secretary of the Interior ... may also provide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of any said park....” 16 U.S.C. § 3. The NPS argues its plan is permissible under § 3 and does not constitute hunting, so § 198c does not apply. WildEarth contends the NPS’s plan involves hunting and violates § 198c. As' a preliminary matter, the parties and the district court evaluated the NPS’s action under the deferential standard announced in Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-42, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which we can apply when an agency interprets an ambiguous statute. But" }, { "docid": "20690497", "title": "", "text": "APA, our review must “be based on the full administrative record that was before the Secretary” when she made her decision. Kempthorne, 530 F.3d at 1002. To ensure that we review only those documents that were before the agency, we “do not allow parties to supplement the. record unless they can demonstrate unusual circumstances justifying a departure from this general rule.” Id. (quotation mark omitted). We have identified three “unusual circumstances”: (1) the agency deliberately or negligently excluded documents that may have been adverse to its decision; (2) the district court needed to supplement the record with background information in order to determine whether the agency considered all of the relevant factors; or (3) the agency failed to explain administrative action so as to frustrate judicial review. Id. (quotation marks, citations and alteration omitted); see also City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C.Cir.2010) (denying motion to supplement administrative record because “[n]one of these [three] conditions is met”). DHP complains that the district court should have supplemented the administrative record with source data used to approximate cost-to-charge ratios for 2004. But it does not explain — or even try to explain — how its request falls into one of the three unusual circumstances elucidated in Kempthorne. The Secretary did not frustrate judicial review by saying too little; the 2004 rulemaking explained at length how she calculated cost-to-charge ratios in light of the outlier correction rule. See 68 Fed.Reg. at 45,476 (explaining “three steps” used to calculate “updated cost-to-charge ratios”). Nor does the source data constitute critical background information. See James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1095-96 (D.C.Cir.1996) (unnecessary to supplement administrative record with underlying source documents because record contained “detailed memoranda describing the [agency’s] findings and recommendations”). DHP has also failed to establish that this source data was deliberately or negligently excluded by the Secretary. Meeting this exception requires a “strong showing of [agency] bad faith” and the “conelusory statements” in DHP’s brief “fall far short” of that high threshold. Id. at 1095 (quotation mark omitted). DHP next argues that the district" }, { "docid": "2188740", "title": "", "text": "court. . In 2011, the Colorado Division of Wildlife merged with the Division of Parks and Outdoor Recreation to become the Division of Parks and Wildlife. We refer to the agency by its old name, as all events significant to this appeal occurred prior to the merger. . The NPS’s consideration of another alternative, the limited use of wolves in conjunction with sharpshooters, demonstrates the proper application of 40 C.F.R. § 1502.14(c). The NPS would need the permission of the United States Fish and Wildlife Service (USFWS) to reintroduce wolves into RMNP because gray wolves are a federally listed endangered species. See 16 U.S.C. § 1539(j) (permitting reintroduction of an experimental population of an endangered species only with the Secretary of the Interior’s permission and only where \"such release will further conservation of such species”). The NPS included consideration of a limited wolf reintroduction in its EIS, in compliance with § 1502.14(c), despite the uncertainty of obtaining this permission. . The record evidence WildEarth cites to support its claim does not actually do so. Wild-Earth cites an email from a USFWS biologist to an NPS biologist expressing his opinion that wolf reintroduction in RMNP would not succeed and would create more problems than it would solve. This email only briefly mentions CDOW’s opposition, and does not mention the March 2005 meeting. . The full definitions from the final EIS are as follows: Hunting is a recreational activity that includes the elements of fair chase and personal take of the meat, as well as being a conservation tool. Hunting is administered by the state fish and game agency, which licenses hunters. If areas of the park were to be opened to hunting those areas would need to be closed to visitor use while hunting was taking place. The NPS would need to absorb the costs of managing hunters, visitors and media during a hunt. Culling is used as a conservation tool to reduce populations that have exceeded the carrying capacity of their habitat. As opposed to hunting, culling is done under very controlled circumstances in order to minimize impacts on park" }, { "docid": "11080060", "title": "", "text": "request that the Court supplement the record with various documents which Plaintiffs contend are specifically referenced, or otherwise identified, in the Federal Register as having been considered in the process of its rule-makings here at issue. See Revised Exhibit A, Items 26-35. Before addressing these documents, the Court first pauses to observe that, as several courts in this district have held, reference to a document in the administrative record does not itself constitute “concrete evidence” that the document was considered by the agency. See, e.g., Franks, 751 F.Supp.2d at 70; WildEarth Guardians, 670 F.Supp.2d at 6; Cape Hatteras Access Preservation Alliance v. U.S. Dep’t of Interior, 667 F.Supp.2d 111, 114 (D.D.C.2009). Plaintiffs therefore cannot meet their burden by pointing to the mere mention of Items 26-35 in the Federal Register; rather, they must offer non-speculative argument for their belief that the Secretary actually considered the materials. In this regard, several of the documents and categories of documents listed in Revised Exhibit A under this category are nowhere specifically discussed in Plaintiffs’ briefing — namely, Items 27, 31, 32, 34, and 35. Instead, Plaintiffs simply list citations to portions of the Federal Register and deposition transcripts from the District Hospital Partners discovery proceedings. But for reasons just stated, mere mention in a Federal Register notice is not enough, and the Court need not, and shall not, itself plow through the record in an attempt to determine whether the documents were in fact considered by the Secretary in making the pertinent decisions. Even if it were self-evident from the content of the Federal Register excerpts that the documents exist and were before the agency in connection with the challenged rulemaking(s), Plaintiffs have made no attempt to align any of these items with one of the three “unusual circumstances” required for supplementation. See City of Dania Beach, 628 F.3d at 590. Accordingly, the Court declines to order the Secretary to supplement the record with Items 27, 31, 32, 34, and 35. See Nat’l Min. Ass’n, 856 F.Supp.2d at 158 (“If the plaintiffs do not take their argument seriously enough to do more than" }, { "docid": "2188707", "title": "", "text": "20, 2006). The draft EIS reiterated the NPS’s reasons for excluding the natural wolf alternative. The NPS again sought public comment on its draft EIS and held several public meetings during the comment period. The agency then considered the more than 3,100 comments it had received and prepared a final EIS. The agency released its final EIS in December 2007. 72 Fed.Reg. 70,342-01 (Dec. 11, 2007). Although the agency had identified rapid reduction as its preferred alternative in the draft EIS, the final EIS selected a different alternative, gradual reduction. The final EIS also made a small but important change — expanding the definition of those who could assist the NPS with killing elk to include qualified volunteers. The final EIS also took pains to distinguish killing elk for management purposes, which it called culling, from hunting. The final EIS defined “culling” as a highly controlled method for managing an elk population and “hunting” as a loosely regulated recreational activity. After the final EIS was released, Wild-Earth sought judicial review of the NPS’s decision. WildEarth alleged the NPS acted arbitrarily and capriciously by excluding consideration of the natural wolf alternative from its EIS. WildEarth also alleged the NPS’s decision to allow volunteers to participate in culling activities was tantamount to hunting, and violated the RMNP Act. The district court entered judgment for the NPS, concluding the agency took a hard look at the relevant data and articulated a rational connection between that data and its conclusion that the natural wolf alternative was infeasible. The court also found the agency’s distinction between hunting and culling was reasonable, and that the use of volunteers to assist in culling activities did not violate the RMNP Act. II. Discussion A. Standard of Review We give no deference to a district court’s review of agency action, reviewing its decision de novo. Forest Guardians v. U.S. Fisk & Wildlife Serv., 611 F.3d 692, 710-11 (10th Cir.2010). But our review of the NPS’s actions is considerably more deferential. We review the NPS’s compliance with NEPA under the Administrative Procedure Act (APA), which authorizes us to set aside" }, { "docid": "21443738", "title": "", "text": "fall within well-established exceptions to the rule limiting judicial review to the administrative record. The Secretaries, on the other hand, counter that NEC failed to show that its exhibits were considered by agency officials with decision-making authority at the time the POC Programs were developed and that several of NEC’s exhibits postdate the completed FS Action Plan and BLM Management Guidelines. Moreover, while acknowledging that “several narrow circumstances” allow consideration of extra-record material, the Secretaries claim that NEC failed to establish how any of its exhibits qualify for any of the exceptions. The Secretaries also contend that even if exclusion of the exhibits was improper their exclusion was merely harmless error because the district court previously concluded that the exhibits would have no impact on its decision. While realizing that it was authorized to look beyond the administrative record, the district court declined to do so for three reasons. First, the court found that it was unnecessary to go beyond the record to determine whether the POC Program was a final agency action. Next, the court reasoned that it was unnecessary to go beyond the administrative record to decide whether the adoption of the Action Plan and Guidelines triggered NEPA procedures. Finally, finding that many of the Plaintiffs’ exhibits duplicated material already found in the agency record, the court struck these exhibits as cumulative. 1. Standard of Review We review the district court’s decision to exclude extra-record evidence for an abuse of discretion. Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1447 (9th Cir.1996). 2. Extra-record Evidence We allow consideration of extra-record materials in four circumstances: (1) if necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) “when the agency has relied on documents not in the record,” or (3) “when supplementing the record is necessary to explain technical terms or complex subject matter,” and (4) “when the plaintiffs make a showing of agency bad faith.” Southwest Center, 100 F.3d at 1450. NEC arguably points to the second exception when they state that the excluded exhibits “are agency" }, { "docid": "3759756", "title": "", "text": "were relevant or were before an agency when it made its decision.” Id. “‘Instead, the plaintiff ‘must identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not'included in the record.’” Id. (emphasis in original) (quoting Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F.Supp.2d 1, 6 (D.D.C.2006)). The plaintiff must alsó “identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents and data that are ‘likely’ to exist as a result of other' documents that are included in the administrative record.” Banner Health, 945 F.Supp.2d at 17. Alternatively, a party may seek to supplement the -record with “extra-judicial evidence that was not initially .before the agency but [which] the party believes should nonetheless be included in the administrative record.” ‘ WildEarth Guardians, 670 F.Supp.2d at 5 n. 4. In these circumstances, a more stringent standard applies. To “justify! ] a departure from [the] general rule” that .review “is to be based on the full administrative record that was before the-Secretary at the time he made his - decision,” a party must demonstrate one of three “unusual circumstances.” Am. Wildlands v. Kempthorne, 580 F.3d 991, 1002 (D.C.Cir.2008) (internal quotation marks omitted).. Those circumstances include: (1) when “the, agency ‘deliberately or negligently excluded documents that may have been adverse to its decision,’ ” (2) when “background information [is] needed, ‘to. determine whether the agency considered all the relevant factors,’ ” and (3) when “the ‘agency failed to explain administrative action so as to frustrate judicial review.’” City of Dania Beach v. F.A.A., 628 F.3d 581, 590 (D.C.Cir.2010) (quoting Am. Wildlands, 530 F.3d at 1002). The Court agrees with another judge in this ‘district in noting that the dual use of the term “supplement” has caused “some confusion” about the proper test to apply when-a party seeks to supplement the administrative record. See The Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 667 F.Supp.2d 111, 113 (D.D.C.2009). “Supplement” has been used synonymously to refer to both a circumstance in" }, { "docid": "14802960", "title": "", "text": "that should have been properly a part of the administrative record but was excluded by the agency, or (2) adding extrajudicial evidence that was not initially before the agency but the party believes should nonetheless be included in the administrative record.” WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 5 n. 4 (D.D.C.2009). Here, plaintiffs only seek supplementation on the first ground — that evidence before the decision maker at the time of the decisions has been excluded from the record. (Pis.’ Reply to Def.’s Opp’n to Pis.’ Mot. to Compel (“Reply”), July 18, 2013 [Dkt. No. 103] at 2.) Supplementation on this ground is appropriate only under three “unusual circumstances”: “(1) if the agency deliberately or negligently excluded documents that may have been adverse to its decision, (2) if background information was needed to determine whether the agency considered all the relevant factors, or (3) if the agency failed to explain administrative action so as to frustrate judicial review.” See City of Dania Beach v. F.A.A., 628 F.3d 581, 590 (D.C.Cir.2010) (internal quotation marks and citations omitted). Further, to rebut the presumption of regularity, parties seeking supplementation must also introduce non-speculative, concrete evidence to support their belief that the specific documents allegedly missing from the administrative record were directly or indirectly considered by the actual decision makers involved in the challenged agency action. See WildEarth Guardians, 670 F.Supp.2d at 5; see also Banner Health I, 945 F.Supp.2d at 17, 2013 WL 2112169, at *10. In this regard, the parties seeking supplementation “must identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents and data that are ‘likely’ to exist as a result of other documents that are includ ed in the administrative record.” Banner Health I, 945 F.Supp.2d at 17, 2013 WL 2112169, at *10. II. DISCUSSION A. GENERAL ISSUES Before turning to the specific requests, the Court must address several general arguments raised by the parties. 1. Timeliness of the Motion The Secretary first argues that plaintiffs’ motion to compel is untimely because the plaintiffs waited until mid-way through" }, { "docid": "2188708", "title": "", "text": "alleged the NPS acted arbitrarily and capriciously by excluding consideration of the natural wolf alternative from its EIS. WildEarth also alleged the NPS’s decision to allow volunteers to participate in culling activities was tantamount to hunting, and violated the RMNP Act. The district court entered judgment for the NPS, concluding the agency took a hard look at the relevant data and articulated a rational connection between that data and its conclusion that the natural wolf alternative was infeasible. The court also found the agency’s distinction between hunting and culling was reasonable, and that the use of volunteers to assist in culling activities did not violate the RMNP Act. II. Discussion A. Standard of Review We give no deference to a district court’s review of agency action, reviewing its decision de novo. Forest Guardians v. U.S. Fisk & Wildlife Serv., 611 F.3d 692, 710-11 (10th Cir.2010). But our review of the NPS’s actions is considerably more deferential. We review the NPS’s compliance with NEPA under the Administrative Procedure Act (APA), which authorizes us to set aside agency action only when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1008 (10th Cir.2012). When reviewing agency action, our task is to ensure the agency examined the relevant data and articulated a rational connection between that data and its decision. Citizens’ Comm, to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir.2008); FCC v. Fox TV. Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). Our deference to the agency is more substantial when the challenged decision involves technical or scientific matters within the agency’s area of expertise. Morris v. U.S. Nuclear Regulatory Comm’n, 598 F.3d 677, 691 (10th Cir.), cert. denied, — U.S. -, 131 S.Ct. 602, 178 L.Ed.2d 436 (2010). Accordingly, we will not set aside an agency’s decision unless: the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the" }, { "docid": "2188739", "title": "", "text": "position adopted by the agency. Again, the fact that the NPS later adopted a different position does not mean that the agency acted arbitrarily and capriciously. Nat’l Ass’n of Home Builders, 551 U.S. at 659, 127 S.Ct. 2518. The record reflects that the NPS’s elk management plan is meant to control the number of elk in RMNP. Elk will not be killed when they are within the target range. Culls will be closely supervised by NPS employees. Some cullers may enjoy the experience, but this is irrelevant so long as they kill elk for management purposes pursuant to the procedures and supervision of the NPS. The primary purpose of hunting is not for controlling a population of detrimental animals but for food and sport. Because the purpose of the NPS’s plan is to control the population of the park’s elk and their effect on vegetation, it is distinguishable from hunting, regardless of whether members of the public volunteer to participate in culls. III. Conclusion For the foregoing reasons, we AFFIRM the order of the district court. . In 2011, the Colorado Division of Wildlife merged with the Division of Parks and Outdoor Recreation to become the Division of Parks and Wildlife. We refer to the agency by its old name, as all events significant to this appeal occurred prior to the merger. . The NPS’s consideration of another alternative, the limited use of wolves in conjunction with sharpshooters, demonstrates the proper application of 40 C.F.R. § 1502.14(c). The NPS would need the permission of the United States Fish and Wildlife Service (USFWS) to reintroduce wolves into RMNP because gray wolves are a federally listed endangered species. See 16 U.S.C. § 1539(j) (permitting reintroduction of an experimental population of an endangered species only with the Secretary of the Interior’s permission and only where \"such release will further conservation of such species”). The NPS included consideration of a limited wolf reintroduction in its EIS, in compliance with § 1502.14(c), despite the uncertainty of obtaining this permission. . The record evidence WildEarth cites to support its claim does not actually do so. Wild-Earth" }, { "docid": "2188734", "title": "", "text": "an animal, it is permissible management killing. It is not clear whether WildEarth considers an authorized contractor a permissible actor, but it strongly condemns the use of volunteer agents, regardless of the shooter’s motives or whether he or she has the NPS’s permission. The NPS, again, argues that the nature and purpose of the act determines whether an animal’s destruction is hunting or management killing, not the identity of those who carry it out. There is no support in the text of either § 3 or § 198c for WildEarth’s position. Neither § 198c’s hunting ban nor the exceptions to that ban are based on the identity of the party destroying the animal. Section 198c’s hunting ban is universal, and the exceptions to the statute’s killing, capturing, or wounding ban focus on the reason the animal is killed, rather than who kills it. Section 198c permits animals to be killed if they are dangerous to humans, and § 3 permits animals to be killed if they are detrimental to the park. And § 3 gives the Secretary discretion to determine how detrimental animals are to be destroyed. Nor does WildEarth satisfactorily explain why, if NPS personnel can shoot an elk without it being considered hunting, the NPS’s agents cannot do so, or can do so only if they are being paid by the NPS. Generally a principal can authorize an agent to perform any lawful act the principal can perform himself. See Phillips Petroleum Co. v. Peterson, 218 F.2d 926 (10th Cir.1954); 2A C.J.S. Agency § 129 (2012). WildEarth never explains why an authorized and carefully supervised volunteer is not subject to this rule. The more plausible distinction between hunting and management killing is the one advanced by the NPS: namely, that the difference between permissible management killing, or culling, and impermissible hunting is that the latter is the recreational pursuit of game for meat and sport, with incidental management effects on game populations, while the former is the closely supervised killing of game to control its population. This interpretation rests on the reason the animal is being killed and" } ]

[ { "docid": "4772638", "title": "", "text": "material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ. P. 56(c). The Court’s role is to determine whether there are issues to be tried. Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In testing whether the movant has met this burden, the Court must resolve all ambiguities against the movant. Heyman, supra, 524 F.2d at 1320. The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The nonmoving party has the burden of coming forward with “specific facts showing that there is a genuine issue for trial”. Fed.R.Civ.P. 56(e). The nonmovant must “do more than simply show that there is some metaphysical doubt as to the material facts”. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 582, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Speculation, conclusory allegations, and mere denials are not enough to raise genuine issues of fact. Plaintiff seeks summary judgment on its single claim for the principal sum of $1,584,520 plus interest and attorney’s fees. The relationship between a guarantor and a lender is contractual in nature and defined by the contract of guarantee. Bank of North America v. Shapiro, 31 A.D.2d 465, 298 N.Y.S.2d 399 (1st Dep’t 1969). It is clear, and defendant does not contest that he signed a series of agreements with NatWest under which he is liable for the full amount of the loan balance in the event of default. Moreover plaintiff asserts, and defendant does not contest, that the filing of the tax lien against RPC constituted default under each of the loan agreements. Defendant responds, however, that summary judgment should not be granted to plaintiff on its claim because plaintiff" } ]

[ { "docid": "2923279", "title": "", "text": "ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ORLANDO L. GARCIA, District Judge. Before the Court is defendants’ motion to dismiss. (Docket no. 13.) Because the motion relies in part on matters outside of the pleadings, the Court elected to treat it as a motion for summary judgment under Fed.R.Civ.P. 56. (Docket no. 24.) The Court gave both sides the opportunity to present additional evidence; neither side did. The motion is ripe for decision. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate “an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the nonmoving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party may not rest on mere allegations or denials of his pleading, but must “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e) and adding emphasis). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (citations omitted). However, “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Id. (citation omitted). This is an action for overtime pay brought by former residential rental" }, { "docid": "5681998", "title": "", "text": "DISCUSSION A. Summary Judgment Standard Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247,106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983). Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587,106 S.Ct. at 1356. At that point the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586,106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. at 2510-11; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. B. Prima Facie Case—Damages Defendant argues that the action must be dismissed due to plaintiffs failure to set forth any evidence of damages. It is undisputed that while defendant’s coinsurance was based upon the DRG Rate of $3,708.78, plaintiffs coinsurance was based upon the amount billed by St. Lukes, $4,101.54. It is also undisputed that at the time the St. Lukes charges were incurred, plaintiff had previously paid $59.00 in coinsurance, leaving only $341.00 before meeting his $400.00 maximum for that year. Plaintiffs coinsurance" }, { "docid": "7597590", "title": "", "text": "MEMORANDUM OPINION OSTEEN, District Judge. This case comes before the court on Plaintiffs’ Motion for Summary Judgment. In August 1996, the Food and Drug Administration (“FDA”) published in the Federal Register “Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents” (“Regulations”). 61 Fed.Reg. 44,396 (1996). Plaintiffs now seek summary judgment claiming that Congress has withheld the authority to regulate tobacco products as customarily marketed from FDA and that the Federal Food, Drug, and Cosmetic Act (“FDCA” or “Act”) does not authorize FDA to regulate tobacco products as “drugs” or “devices.” For the reasons discussed herein, Plaintiffs’ Motion for Summary Judgment will be granted in part and denied in part. I. DISCUSSION A. SUMMARY JUDGMENT PRINCIPLES. Summary judgment is appropriate in those cases where it is established through pleadings, affidavits, depositions, and other discovery documents that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Thus, it is the burden of the moving party to show the court that no material factual issues exist for trial. Of course, the court must draw any permissible inference from the underlying facts as established in the record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986); Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). When the moving party has carried its burden, the nonmoving party must come forward with evidence which shows more than some “metaphysical doubt” that genuine and material factual issues exist. Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. A mere scintilla of evidence presented by the non-moving party is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Rather, the nonmov-ing party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for" }, { "docid": "22159042", "title": "", "text": "judgment as a matter of law. See Fed. R.Civ.Proc. 56(c). An issue of material fact is genuine if it has a real basis in the record. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A genuine issue of fact is material if 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, 2510, 91 L.Ed.2d 202 (1986). Procedurally, the movant has the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). The movant is not required by the rules to support its motion with affidavits or other similar materials negating the opponent’s claim. Id. “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. “Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Id. at 587, 106 S.Ct. at 1356. “[T]he 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 essen-tia] 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. at 2552. In ruling on a motion for summary judgment, the court must bear in mind the actual quantum and quality of proof necessary to support liability under the applicable law. Anderson, 477 U.S. at 254, 106 S.Ct. at 2513. The court must assess the adequacy of the nonmovants’ response and whether that showing, on admissible evidence, would be" }, { "docid": "20307617", "title": "", "text": "changed and defendant Celia Hamblin (“Hamblin”), the Chief Information Officer at the DOL, eliminated approximately fifty-six positions in order to remain within the monetary allocation. She chose to eliminate the vacant Information Specialist position for which Chiesa had applied. Plaintiff received notice of the right to sue as a result of the EEOC complaints and as previously noted now alleges violations of the Americans with Disabilities Act, Title VII, and the New York State Human Rights Law. She also alleges discrimination and retaliation after she exercised her protected right of filing a complaint. III. Summary Judgment Standard Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions arid affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10; 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). When the moving party has met the burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. At that point, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” - Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-19, 106 S.Ct. at 2510; Matsushita" }, { "docid": "4294036", "title": "", "text": "that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). When the moving party has met the burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. At that point, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. B. Analysis 1. County’s Motion to Dismiss The County asserts the doctrine of abstention and lack of subject matter jurisdiction (due to the “prior-exclusive-jurisdiction” rule applicable to in rem proceedings) as bases for dismissal. It is therefore appropriate to first address the County’s motion to dismiss. a. Abstention The doctrine of abstention may be applied by a federal court to “decline to exercise or postpone the exercise of its jurisdiction” when the same issue is also presented in a state court with concurrent jurisdiction. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). However, “ ‘it is an extraordinary and narrow exception to the" }, { "docid": "4294035", "title": "", "text": "to Fed.R.Civ.P. 12(b), the court must assume all of the allegations in the complaint are true. Id. In reviewing the sufficiency of a complaint at the pleading stage, “[t]he. issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Where a motion to dismiss is made prior to any discovery or the filing of an answer, the court is loath to dismiss the complaint, regardless of whether the plaintiff is unlikely to prevail, unless the defendant can demonstrate that plaintiff is unable to prove facts which would entitle him to relief. Wade v. Johnson Controls, Inc., 693 F.2d 19, 22 (2d Cir.1982); see, also Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754 (2d Cir.1976). 2. Summary Judgment Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). When the moving party has met the burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. At that point, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106" }, { "docid": "14211412", "title": "", "text": "Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,’ ” that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e). In meeting this burden the nonmoving party “must do more than simply show that there is a metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a “genuine issue for trial.” Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. FINDINGS OF FACT This action is composed of a disparate treatment claim based on gender discrimination and a sexual harassment claim. The issues are whether Robyn" }, { "docid": "20127997", "title": "", "text": "its burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. The admissibility of evidence is subject to the same standards and rules that govern admissibility of evidence at trial. Clemons v. Dougherty County, Georgia, 684 F.2d 1365, 1369 n. 5 (11th Cir.1982) (citing Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir.1980)). Once the movant meets its burden under Rule 56, the non-movant must designate specific facts showing there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory assertions, unsupported by specific facts, presented in affidavits opposing the motion for summary judgment are likewise insufficient to defeat a proper motion for summary judgment. Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); see also Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997) (conclusory assertions in absence of supporting evidence are insufficient to withstand summary judgment). “Speculation does not create a genuine issue of fact.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.2005) (citation omitted) (emphasis in original). The party opposing summary judgment must respond by setting forth specific evidence in the record and articulating the precise manner in which that evidence supports his or her claim, and my not rest upon the mere allegations or denials of the pleadings. Fed.R.CivP. 56(e); Johnson v. Board of Regents of University of Georgia, 263 F.3d 1234, 1264 (11th Cir.2001). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). Thus, to avoid summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus., 475 U.S. at 586 106 S.Ct. at 1356 (citations omitted). In determining whether a genuine issue for trial exists, the court must view all the evidence in the light most favorable to the nonmovant. McCormick v. City of Fort Lauderdale, 333 F.3d" }, { "docid": "15047256", "title": "", "text": "Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary “judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party’s case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53. To defeat a summary judgment motion, the non-moving party 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, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must “set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, “[t]he time has come ... ‘to put up or shut up.’ ”) (citations omitted), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003). In evaluating the record to determine whether there is a genuine" }, { "docid": "11252248", "title": "", "text": "claim, but rather, may discharge his burden merely by “ ‘showing’ — that is, pointing out to the - district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 817, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). When this burden is met, the non-movant is then required “to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate -specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). A court evaluating a summary judgment motion must view the evidence in the light most favorable to the nonmovant. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988); Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986), reh’g denied, 815 F.2d 66 (11th Cir.1987). However, Rule 56 “[b]y its very terms, ... provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-8, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts”). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. An issue is not genuine if it is created by evidence that is “merely colorable” or is “not significantly probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511; accord Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir.1988). Substantive law will identify which facts are material. Anderson, 411 U.S. at 248, 106 S.Ct. at 2510. 2. FLSA The FLSA, which was enacted to protect" }, { "docid": "15309447", "title": "", "text": "(citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,’ ” that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. Once this initial demonstration under Rule 56(e) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e). In meeting this burden the nonmoving party “must do more than simply show that there is a metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a “genuine issue for trial.” Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11. DISCUSSION While the parties may desire it, the court cannot and will not review the Service’s decision to terminate the Plaintiff. The Plaintiff sought to have this decision overturned and a neutral arbitrator denied her appeal. This action concerns many" }, { "docid": "3692241", "title": "", "text": "that (1) even if everything plaintiff has alleged were true, she does not have evidence to show either quid pro quo or hostile work environment sexual harassment, and (2) there was no conspiracy between the President and Ferguson to violate plaintiffs constitutional rights by sexually harassing her. The President and Ferguson both argue that there are no genuine issues of material fact with respect to any of these issues and that they are entitled to summary judgment as a matter of law. A. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate “an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the nonmoving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The nonmoving party may not rest on mere allegations or denials of his pleading, but must “come forward with ‘specific facts showing that there is a genuine issue for trial.’.” Id. at 587,. 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e) and adding emphasis). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., 475 U.S. at 587,106 S.Ct. at 1356 (citations omitted). However, “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmov-ing party, there is no ‘genuine issue for trial.’ ” Id. (citation" }, { "docid": "13582322", "title": "", "text": "judgment is appropriate where the moving party establishes that “there is no genuine issue of material fact and that [it] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party must show that, if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof. Celotex v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Fed. R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Mere conclusory allegations are not competent summary judgment evidence, and they are, therefore, insufficient to defeat or support a motion for summary judgment. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992). B. In support of its Motion for Summary Judgment, Fina Oil presents affidavit evidence that the only people with access to the list were top Fina managers and the chairman of two unions. The affidavit evidence also contained opinions that neither the Company, nor any authorized agent, posted the list or published it in any manner. Furthermore, deposition testimony from Stephen Cornell, the refinery manager, revealed two theories of how the list was published: (1) a member of the IBEW union received a copy of the list from the union representative, made a copy of it, and posted it in the IBEW shop area; and (2) the OCAW union distributed the list to union members. Fina Oil contends that plaintiffs have put forth no credible evidence and alleged no specific facts that the information was disseminated by" }, { "docid": "19846949", "title": "", "text": "to Griffith, who, for a short period of time, was gasping for breath. Griffith died shortly thereafter in the water. All of the passengers on the MasterCraft testified that the Celebrity boat was on the opposite side of the lake, to the left of them, after the collision. II. ANALYSIS A. Standard of Review Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of 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 moving party bears the burden of showing the absence of any genuine issues of material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir.2008). Once the movant has satisfied its burden, the nonmoving party 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), it must produce evidence showing that a genuine issue remains, Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir.2000). If, after reviewing the record as a whole, a rational fact finder could not find for the nonmoving party, summary judgment should be granted. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir.1998). Moreover, the trial court is not required to “search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989). Rather, the “nonmoving party has an affirmative duty to direct the court’s attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.” In re Morris, 260 F.3d" }, { "docid": "12111864", "title": "", "text": "with specific facts that demonstrate the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The nonmoving party is required “to go beyond the pleadings” and to present competent evidence designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Generally, “[t]he mere existence of a scintilla of evidence” supporting the nonmoving party’s case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). When considering motions for summary judgment, the court does not make decisions as to the merits of disputed factual issues. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Ryder Int’l Corp. v. First American Nat’l Bank, 943 F.2d 1521, 1523 (llth Cir.1991). Rather, the court only determines whether there are genuine issues of material fact to be tried. Applicable substantive law identifies those facts that are material and those that are irrelevant. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputed facts that do not resolve or affect the outcome of a suit will not properly preclude the entry of summary judgment. Id. If a fact is found to be material, the court must also consider the genuineness of the alleged factual dispute. Id. An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is “merely colorable” or is “not significantly probative.” Id. at 250, 106 S.Ct. 2505. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 242,106 S.Ct. 2505. Moreover, for factual issues to be genuine, they must have a real basis in the record. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586, 106 S.Ct. 1348. “Where the record taken as a" }, { "docid": "17177521", "title": "", "text": "by [its] own affidavits, or depositions, answers to interrogatories, and admissions on file, ‘designate’ specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (internal citations omitted). Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505 (the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). “Mere allegations or denials in the adverse party’s pleadings are insufficient to defeat an otherwise proper motion for summary judgment.” Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C.1996). The adverse party 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). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to “come forward with ‘specific facts showing that there is a germine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (citing Fed.R.Civ.P. 56(e)) (emphasis in original). III. DISCUSSION The Court shall turn first to consider Plaintiffs [156] Motion for Summary Judgment on the Issue of UTS’s Conversion, which relates" }, { "docid": "5720691", "title": "", "text": "the summary judgment stage, the court must construe the evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The party asking for summary judgment “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 affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2553 (citing Fed.R.Civ.P. 56(c)). Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must “go beyond the pleadings and by [his or her] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324,106 S.Ct. at 2553; see also Fed.R.CivJP. 56(e). In meeting this burden the nonmoving party “must do more than simply show that there is a metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a “genuine issue for trial.” Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Id. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11. DISCUSSION Section 1983 of Title 42 of the United States Code creates a mechanism for recovering monetary damages from and securing injunctive relief against governmental actors and entities whose action under color of state or local law deprive a plaintiff of rights, privileges, or immunities secured by the United States Constitution or federal statutes." }, { "docid": "15938837", "title": "", "text": "59 parcels through the completion of this litigation. (Carvelli Aff. Ex. A.) On September 26, 2005, the Deputy Commissioner of Finance for Oneida County delivered additional Final Notices Before Redemption to the Nation covering 62 parcels. These notices, dated September 21, 2005, set a final redemption date of October 29, 2005. Again on October 27, 2005, Final Notices Before Redemption covering 66 parcels were delivered to the Nation. (Yerdon Aff. of Regularity ¶ 20.) As noted above, on October 28, 2005, the Nation sought and obtained a restraining order preventing further foreclosure efforts, which continues in effect by stipulation of the parties. III. SUMMARY JUDGMENT STANDARD Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). When the moving party has met the burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. At that point, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477" }, { "docid": "3194209", "title": "", "text": "judgment solely on plaintiff’s equal protection claim. II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT. Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when the court is satisfied “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.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), quoting Adv.Comm. Note on 1963 Amends, to Fed.R.Civ.P. 56(e). In summary judgment practice, 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. 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). However, a summary judgment motion “may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file,” without any affidavits, if the nonmoving party will bear the burden of proof at trial on a dispositive issue. Id. at 324, 106 S.Ct. at 2553. If the moving party meets its initial responsibility, the burden shifts to the nonmoving party to establish the existence of a genuine issue of material fact. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 585-86, 106 S.Ct. at 1355-56. The nonmoving party may not simply rely upon its pleading denials, but must tender evidence of specific facts in the form of affidavits or admissible discovery material, or both, in support of its contention that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmoving" } ]

[ { "docid": "13033224", "title": "", "text": "which in fact increases the overall royalty payment. The fact that the defendant was able to reduce the unit cost was a benefit to the plaintiff as well as the defendant. Plaintiff's patent is only valid for a limited period, and it is to his advantage to sell as many of his devices as possible. Plaintiff’s argument in effect penalizes the defendant for purchasing the device in volume. 'Since neither the plaintiff’s nor the defendant’s arguments have convinced us, we must use our own judgment in this matter. Since the Government was almost the sole market, for plaintiff’s device and since its volume of purchases greatly exceeded civilian.sales, we believe that common sense would have made plaintiff allow the Government a lower royalty than that which he charged his other customers. Under the circumstances, we believe a royalty of three percent on the first million dollars worth of sales and two percent on the remainder would be reasonable compensation. We hold, therefore, that reasonable and entire compensation for defendant’s unauthorized use of plaintiff’s patent should be computed at a rate of three percent of defendant’s costs on the first one million dollars for parachute release devices which infringed plaintiff’s invention and two percent of its costs in excess of that amount with four percent per annum to date of payment to compensate plaintiff for the delay in payment. The amount will be determined pursuant to Rule 38(c), 28 U.S.C.A. It is so ordered. JONES, Chief Judge, and LARAMORE, MADDEN and DURFEE, Judges, concur." } ]

[ { "docid": "14604397", "title": "", "text": "1957, date. About December 26, 1957, plaintiff received $2,480.86 from this licensee, this sum being 5 percent on commercial sales of 469 devices during 1954-1957, these sales totalling $49,617.20. The average sale price for these devices was approximately $105.79 per device and the royalty paid at the 5 percent rate was about $5.29 per device. About January 31,1958, plaintiff received $7,016.38 from this licensee, this sum being 5 percent royalty on commercial sales of some 858 devices plus adjustments on some prior sales. The average sale price for these 853 devices was approximately $101.34 per device, and the royalty paid at the 5 percent rate was about $5.07 per device. These two royalty payments at the 5 percent rate received by the plaintiff-licensor average about $5.15 per device on an average sale price of about $102.92 each. A royalty of $5.15 per device on the average purchase price of $45.18 each paid by defendant would be a royalty at the rate of about 11.4 percent. 7. Defendant’s accounting expert, Capt. Robert A. Lavender, U.S.N. (Net.), testified that in his opinion the plaintiff’s compensation herein should be computed at royalty rates of 2 percent on the first quarter million dollars, 1 y2 percent on the second quarter million, 1 percent on the amount between half and one million, and one-half of 1 percent on the amount over one million. 8. Captain Lavender has rendered outstanding service to defendant during his naval career and as patent adviser to defendant’s Office of Scientific Research and Development and the United States Atomic Energy Commission. Captain Lavender’s opinion is based on his conclusions resulting from his consideration of numerous factors including the Badowski patent, its prosecution in the United States Patent Office, its litigation record, the benefits derived by the defendant from the Badowski disclosure, and other factors. Much of his opinion testimony concerned his consideration of the constructional details of prior patents, the particular release illustrated in the Badowski patent drawings, the Weather Bureau device, and other matters heretofore considered during the prior trial of the validity and infringement issues herein. Captain Lavender testified:" }, { "docid": "14604400", "title": "", "text": "the past negotiated and concluded license agreements wherein the royalty rate was 5 percent, and that he had recommended a royalty rate of 75 percent in one case. Captain Lavender did not recall the names of the parties involved in any cases where he had negotiated license agreements after the patent involved had been held valid and infringed by a court. 10. There is no evidence of the defendant’s actual saving, if any, resulting from its use of the Badowski invention either before or after the court’s holding that certain Badowski patent claims were valid and infringed. There is no evidence herein of the amounts spent by plaintiff in developing this invention. If defendant had purchased its F-l automatic parachute release devices as a non-governmental user from plaintiff’s licensee, American Machine & Metals, Inc., after April 30,1957, plaintiff would have been entitled to receive the specified 5 percent royalty on commercial sales. CONCLUSION OK LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court, having previously concluded that plaintiff is entitled to recover, now concludes that plaintiff is entitled to an amount equal to three (3) percent of defendant’s costs on the first one million dollars ($1,000,000) for parachute release devices which infringed plaintiff’s invention, and two (2) percent of defendant’s costs in excess of one million dollars ($1,000,000), with interest at four (4) percent per annum to date of payment as reasonable and entire compensation for defendant’s use prior to January 31,1958, of the invention defined in plaintiff’s United States Patent No. 2,365,445. The amount of recovery will be determined pursuant to Buie 38(c). In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on July 22, 1960, that judgment for the plaintiff be entered for $182,838.44 with interest on said sum at the rate of four percent per annum to date of payment computed on the following basis: Year Amount Interest period 1950-$12, 504.71 from Dec. 31,1950 1952- 918.45 from Dee. 31,1952 1953- 22,535. 70" }, { "docid": "11932987", "title": "", "text": "figure of about $18 per canopy, or a total amount of $237,996. Had the parties entered into negotiations for a license to use plaintiff’s invention on the basis of 13,000 planes, the canopies on which were expected to cost, say $1,000 per canopy, or a total cost of about $13 million, we think the parties might well have agreed upon a royalty at the approximate rate of 3 percent on the first $5 million (instead of the first $1 million recommended by the Trial Commissioner, influenced by our decision in Badowski v. United States, 278 F.2d 934, 150 Ct.Cl. 482), and 2 percent on the excess. At $1,000 per canopy this would amount to $310,000. This is to be compared with the royalty agreed upon in the British settlement, adjusted for monetary fluctuations, which amounts to $237,996. We are obliged to enter a judgment somewhat in the nature of a jury verdict. Taking all the foregoing into consideration, we think the compensation, which is just to both parties, amounts to the sum of $250,000. We do not know the date of defendant’s purchases, nor the rate of them in the seven years between December 9, 1948 and August 2, 1955. Taking' an intermediate date of 3% years, and allowing 4 percent per annum for delay in payment, plaintiff is entitled to recover an additional sum of $110,000 for delay in payment. Judgment will be entered in plaintiff’s favor for the sum of $360,000. DAVIS, Judge, did not participate in the consideration and decision of this case. . Westinghouse Blectrie Co. v. Wagner Mfg. Co., 225 U.S. 604, 614-617, 32 S.Ct. 691, 56 L.Ed. 1222; Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., 235 U.S. 641, 646, 35 S.Ct. 221, 59 L.Ed. 398; Sheldon v. Metro-Goldwyn Corp., 309 U.S. 390, 402-406, 60 S.Ct. 681, 84 L.Ed. 825. . $994 is the cost of the cheapest canopy assembly listed on the Air Force stock list, mentioned above." }, { "docid": "14604394", "title": "", "text": "for new trial was overruled July 16, 1958, the opinion of the court being delivered by Judge Whitaker. 164 F. Supp. 252, 118 USPQ 358. 2.The accounting period in this suit extends from August 7,1947, to January 31, 1958. In a stipulation filed October 2,1959, the parties agreed— That 191,274 devices held to infringe were delivered to the defendant during the period extending from August 7, 1947 to January 31, 1958, for which the defendant paid Eight Million, Six Plundred Forty-One Thousand, Nine Hundred Twenty-One Dollars and Forty-Three Cents ($8,641,921.43). ***** That deliveries by years of devices held to infringe were made to defendant during the accounting period, as follows: Year Amount Units 1947_ $0.00 0 1948_ 0.00 0 1949_ 0.00 0 1950_ 416, 823. 68 14, 560 1951_ 0.00 0 1952_ 30, 614. 87 1, 027 1953_ 850, 504.23 29,120 1954_ 241, 063.70 8,170 1955_ 215, 363.00 3, 805 1956_ 2,275, 339. 38 42, 839 1957_ 4,323,434.82 85,748 1958_ 288, 777. 75 6, 005 Totals_$8,641,921.43 191,274 ***** 3. The average price paid by defendant for said 191,274 devices was approximately $45.18 per device. Total procurement of these devices by defendant during the two years subsequent to the court’s holding May 1,1956, that plaintiff’s patent was valid and infringed by defendant, substantially exceeds the total procurement by defendant during prior years of the accounting period. 4. The parties have not been able to agree on what percent of the price of these devices would constitute reasonable and entire compensation for plaintiff. Defendant contends that compensation should be computed upon a sliding scale varying from 2 percent on the first quarter million dollars down to one-half of one percent on amounts over one million dollars. Plaintiff contends that compensation should include an 11.6 percent royalty plus interest thereon at the rate of 6 percent. 5. On January 2,1946, plaintiff granted Minnesota Tool & Manufacturing Corporation an exclusive license under plaintiff’s patent No. 2,365,445 and any improvement thereto, to use the same in the manufacture of mechanisms and devices for commercial sale. This agreement provided for two payments of $1,000 each plus" }, { "docid": "16343895", "title": "", "text": "French report by one Devaux describes the settlement approved for the French government on September 6, 1952 (defendant’s exhibit 3, folder No. 3). The report indicates that Raymond Saulnier was indemnified for “irregular use” of the Saulnier '752 patent in the United States during the period December 18,1941, to September 2,1945, at the rate of $4 per canopy for 127,500 canopies, including replacement canopies. There is no evidence that the French settlement negotiations involved any litigation to determine issues of patent validity, patent infringement, or patent accounting. 78. Testimony for plaintiff given by Monsieur Serge Guerbilsky indicates that a settlement was also negotiated on a friendly basis with, the British government (about 1948) for the British wartime use of Saulnier British patent 472,366, and that the total settlement on 26,000 to 27,000 aircraft amounted to about 99,090 British pounds before income taxes. Guerbilsky also testified that the average cost of the British canopies in wartime was about 100 British pounds each. Figuring the British pound at $3.80 in 1948, a settlement amounting to $376,542 (99,090 x 3.8) on 26,500 aircraft cockpit canopies costing $10,070,000 (26,500 x 100 x 3.8) gives a royalty rate of about 3.7 percent of canopy costs, and a canopy rate of about $14 per canopy. Monsieur Guerbilsky testified that he has an interest in the amount of recovery to be entered in the present litigation. CONCLUSION OP LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover in the amount of three hundred sixty thousand dollars ($360,000), and judgment is entered to that effect. Westinghouse Electric Co. v. Wagner Mfg. Co., 225 U.S. 604, 614-617; Dowagiae Mfg. Co. V. Minnesota Moline Plow Co., 235 U.S. 641, 646 ; Sheldon v. Metro-Goldwyn Corp., 309 U.S. 390, 402-406. $994 is the cost of the cheapest canopy assembly listed on the Air Force stock list, mentioned above." }, { "docid": "16343879", "title": "", "text": "into consideration, we think the compensation, which is just to both parties, amounts to the sum of $250,000. We do not know the date of defendant’s purchases, nor the rate of them in the seven years between December 9, 1948 and August 2, 1955. Taking an intermediate date of 3y2 years, and allowing 4 percent per annum for delay in payment, plaintiff is entitled to recover an additional sum of $110,000 for delay in payment. Judgment will be entered in plaintiff’s favor for the sum of $360,000. Davis, Judge, did not participate in the consideration and decision of this case. FINDINGS OF FACT The court, having considered the evidence, the report of Trial Commissioner Donald E. Lane, and the briefs and argument of counsel, makes findings of fact as follows: 45. On January 20, 1960, the court held that Saulnier patent 2,125,752 was valid and had been infringed, and that plaintiff is entitled to recover. 148 Ct. Cl. 507, 180 F. Supp. 412. On June 20, 1960, defendant’s petition for certiorari was denied by the Supreme Court of the United States, 363 U.S. 829. An accounting trial has been held in order to determine the amount of reasonable and entire compensation due plaintiff under Title 28 U.S.C., § 1498. 46. On October 31, 1960, plaintiff filed a new petition, case No. 418-60, alleging infringement of patent 2,125,752 by defendant during the period from December 9, 1954, the filing date of the petition in case 471-54, to August 2,1955, the expiration date of said patent. The parties have stipulated that the present accounting in case No. 471-54 shall be extended to cover defendant’s unauthorized use of plaintiff’s invention during the additional 8-month period. The total recovery period is thus December 9, 1948 through August 2, 1955. 47. Plaintiff charges infringement of certain claims of the '752 Saulnier patent by the cockpit canopy assemblies used on many types of defendant’s aircraft. The court previously found that these patent claims were infringed by the Douglas Sky Raider AD-6/7, the Grumman Fury FJ-2, the Northrup Scorpion F-89D, and the Republic Thunder-jet F-84 aircraft. The" }, { "docid": "16343878", "title": "", "text": "If we adjust this settlement for the difference in the economy then and now, we have a figure of about $18 per canopy, or a total amount of $237,996. Had the parties entered into negotiations for a license to use plaintiff’s invention on the basis of 13,000 planes, the canopies on which were expected to cost, say $1,000 per canopy, or a total cost of about $13 million, we think the parties might well have agreed upon a royalty at the approximate rate of 3 percent on the first $5 million (instead of the first $1 million recommended by the Trial Commissioner, influenced by our decision in Badowshi v. United States, 150 Ct. Cl. 482, 278 F. 2d 934), and 2 percent on the excess. At $1,000 per canopy this would amount to $310,000. This is to be compared with the royalty agreed upon in the British settlement, adjusted for monetary fluctuations, which amounts to $237,996. We are obliged to enter a judgment somewhat in the nature of a jury verdict. Taking all the foregoing into consideration, we think the compensation, which is just to both parties, amounts to the sum of $250,000. We do not know the date of defendant’s purchases, nor the rate of them in the seven years between December 9, 1948 and August 2, 1955. Taking an intermediate date of 3y2 years, and allowing 4 percent per annum for delay in payment, plaintiff is entitled to recover an additional sum of $110,000 for delay in payment. Judgment will be entered in plaintiff’s favor for the sum of $360,000. Davis, Judge, did not participate in the consideration and decision of this case. FINDINGS OF FACT The court, having considered the evidence, the report of Trial Commissioner Donald E. Lane, and the briefs and argument of counsel, makes findings of fact as follows: 45. On January 20, 1960, the court held that Saulnier patent 2,125,752 was valid and had been infringed, and that plaintiff is entitled to recover. 148 Ct. Cl. 507, 180 F. Supp. 412. On June 20, 1960, defendant’s petition for certiorari was denied by the" }, { "docid": "14604401", "title": "", "text": "that plaintiff is entitled to recover, now concludes that plaintiff is entitled to an amount equal to three (3) percent of defendant’s costs on the first one million dollars ($1,000,000) for parachute release devices which infringed plaintiff’s invention, and two (2) percent of defendant’s costs in excess of one million dollars ($1,000,000), with interest at four (4) percent per annum to date of payment as reasonable and entire compensation for defendant’s use prior to January 31,1958, of the invention defined in plaintiff’s United States Patent No. 2,365,445. The amount of recovery will be determined pursuant to Buie 38(c). In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on July 22, 1960, that judgment for the plaintiff be entered for $182,838.44 with interest on said sum at the rate of four percent per annum to date of payment computed on the following basis: Year Amount Interest period 1950-$12, 504.71 from Dec. 31,1950 1952- 918.45 from Dee. 31,1952 1953- 22,535. 70 from Dec. 31,1953 1954- 4, 821.27 from Dec. 31,1954 1955- 4,307.26 from Dec. 31,1955 1956- 45, 506.79 from Dec. 31, 1956 1957- 86,468. 70 from Dec. 31,1957 1958- 5,775.56 from Jan. 31,1958 Plaintiff’s accounting exhibit 1. Plaintiff’s accounting exhibit 15," }, { "docid": "14604392", "title": "", "text": "overall royalty payment. The fact that the defendant was able to reduce the unit cost was a benefit to the plaintiff as well as the defendant. Plaintiff’s patent is only valid for a limited period, and it is to his advantage to sell as many of his devices as possible. Plaintiff’s argument in effect penalizes the defendant for purchasing the device in volume. Since neither the plaintiff’s nor the defendant’s arguments have convinced us, we must use our own judgment in this matter. Since the Government was almost the sole market for plaintiff’s device and since its volume of purchases greatly exceeded civilian sales, we believe that common sense would have made plaintiff allow the Government a lower royalty than that which he charged his other customers. Under the circumstances, we believe a royalty of three percent on the first million dollars worth of sales and two percent on the remainder would be reasonable compensation. We hold, therefore, that reasonable and entire compensation for defendant’s unauthorized use of plaintiff’s patent should be computed at a rate of three percent of defendant’s costs on the first one million dollars for parachute release devices which infringed plaintiff’s invention and two percent of its costs in excess of that amount with four percent per annum to date of payment to compensate plaintiff for the delay in payment. The amount will be determined pursuant to Rule 38 (c). It is so ordered. DttRfee, Judge; Laeamoke, Judge, Madden, Judge; and Jokes, Chief Judge, concur. FINDINGS OF FACT The court, having considered the evidence, the report of Trial Commissioner Donald E. Lane, and the briefs and argument of counsel, makes findings of fact as follows: 1. On May 1, 1956, the court held that plaintiff’s patent No. 2,365,445 is valid, that defendant’s F-l parachute release device infringes said patent, and that plaintiff is entitled to recover reasonable and entire compensation therefor. 135 C. Cls. 93, 140 F. Supp. 544, 109 USPQ 293. Defendant’s first motion for new trial was overruled October 9,1957, its second motion for new trial was overruled December 4,1957, and its third motion" }, { "docid": "16343891", "title": "", "text": "the amount of $9,433. For “Canopy, assy-ckpt end compl” the stock list indicates a standard price in the amount of $994. Available evidence does not indicate exactly what structure is included in each of these items. 66. The information supplied by defendant’s agencies indicates that defendant procured approximately 12,965 infringing canopy assemblies during the period December 9, 1948 through August 2, 1955. This total does not include approximately 201 spare canopies procured during said period, nor does it include 56 McDonald F3H-1N canopies purchased from 1954-1955. There appears to be no satisfactory method by which plaintiff can verify defendant’s procurement totals. 67. The total cost of the 12,965 canopy assemblies, based upon defendant’s cost estimates listed in column 4 of Table A, amounts to $32,794,226. Based upon the plaintiff’s cost estimates listed in column 6 of Table A, the total cost amounts to $81,447,866. These totals do not include the cost of spare canopies, nor the cost of the 56 McDonald canopies mentioned above. These totals give an average canopy assembly cost of $2,529 per canopy based on defendant’s estimates, and an average cost of $6,282 per canopy based on plaintiff’s estimates. 68. In this accounting, plaintiff contends that reasonable and entire compensation should include 15 percent of his estimated total cost for infringing canopy assemblies plus additional compensation at the rate of 6 percent to date of payment. Plaintiff also contends that the total cost should be based upon Professor Koppen’s cost estimates increased by 50 percent, on the ground that Professor Koppen underestimated. It is noted that plaintiff’s petition in case 418-60 alleges that the damage caused plaintiff by defendant’s infringement of the Saulnier '752 patent is an amount measured as 5 percent of the average cost of a slidable and jettisonable canopy with its accessories, multiplied by the number of such canopies procured as original equipment or as spares between December 9, 1954 and August 2, 1955. 69. Plaintiff’s estimate of a total cost of $81,447,866 multiplied by 15 percent gives a royalty amounting to $12,217,179.90. 70. Plaintiff’s estimate of a total cost of $81,447,866 increased by" }, { "docid": "14604395", "title": "", "text": "for said 191,274 devices was approximately $45.18 per device. Total procurement of these devices by defendant during the two years subsequent to the court’s holding May 1,1956, that plaintiff’s patent was valid and infringed by defendant, substantially exceeds the total procurement by defendant during prior years of the accounting period. 4. The parties have not been able to agree on what percent of the price of these devices would constitute reasonable and entire compensation for plaintiff. Defendant contends that compensation should be computed upon a sliding scale varying from 2 percent on the first quarter million dollars down to one-half of one percent on amounts over one million dollars. Plaintiff contends that compensation should include an 11.6 percent royalty plus interest thereon at the rate of 6 percent. 5. On January 2,1946, plaintiff granted Minnesota Tool & Manufacturing Corporation an exclusive license under plaintiff’s patent No. 2,365,445 and any improvement thereto, to use the same in the manufacture of mechanisms and devices for commercial sale. This agreement provided for two payments of $1,000 each plus a royalty at the rate of 5 percent of the total gross receipts from sales. The agreement-specified minimum royalty payments of $1,000 yearly for 1946 and 1947, and $1,500 yearly thereafter. Plaintiff canceled this commercial license agreement by a letter dated March 5, 1947, for nonpayment of minimum royalties monthly. During the approximately 14 months this agreement was effective, plaintiff received payments totalling $2,833.30 from the licensee. 6. On April 30,1957, a date subsequent to the court’s holding plaintiff’s patent valid and infringed, plaintiff granted American Machine & Metals, Inc., a non-exclusive license under patent No. 2,365,445 to make, use and sell for commercial use only. This agreement released licensee for past infringement by devices made and sold for commercial use, but the release did not extend to devices made and sold by licensee for use by the United States Government. This agreement provided for royalty payments at the rate of 5 percent of the selling price of parachute release devices sold by American Machine & Metals, Inc., both before and after its April 30," }, { "docid": "17034999", "title": "", "text": "to an average date of valuation for all lands “to avoid burdensome detailed computation of value as of the date of disposal of each separate tract”, plaintiffs (and defendant) are bound by it. The “date of taking” of all lands in suit is January 1,1912. VI Finally, plaintiffs claim that their recovery should include interest, not as interest but as a part of just compensation, at the rate of 5 percent per annum from “the date of taking” (Section V, supra) to July 1, 1934; at the rate of 4 percent per annum from July 1, 1934 to May 31, 1959; and at the rate of 6 percent per annum thereafter. Recovery should include interest at the rate of 5 percent per annum from January 1, 1912 to January 1, 1934. Uintah and White River Bands of Ute Indians v. United States, 139 Ct. Cl. 1, 11-12, 152 F. Supp. 953 (1957), and cases there cited. From January 2, 1934, to the date of payment, recovery should include interest at the rate of 4 percent per annum. This necessarily rejects plaintiffs’ position concerning a proper rate of interest for tie period June 1,1959, to date of payment. Their precise contention is that just as a change in circumstances in 1934 justified a reduction in interest rates, circumstances “have changed again and this Court should so recognize”; that interest rates “have been up for some time”; and that Indians “can and do invest their money in Treasury notes at rates of interest as high as 6%.” Notiing in the record justifies the argument, nor, in any event, have plaintiffs proven a proper date of change in rate. On this record, the “recognition” plaintiffs seek would be improper. Conclusion For the lands taken by defendant, within the meaning of the Fifth Amendment, plaintiffs are entitled to recover the difference between the fair market value of the said lands as of January 1,1912 ($7,410,000) and the compensation therefor previously received by plaintiffs ($1,343,331.22), or a total of $6,066,668.78, plus interest thereon, not as interest but as a part of just compensation, at the" }, { "docid": "16343892", "title": "", "text": "canopy based on defendant’s estimates, and an average cost of $6,282 per canopy based on plaintiff’s estimates. 68. In this accounting, plaintiff contends that reasonable and entire compensation should include 15 percent of his estimated total cost for infringing canopy assemblies plus additional compensation at the rate of 6 percent to date of payment. Plaintiff also contends that the total cost should be based upon Professor Koppen’s cost estimates increased by 50 percent, on the ground that Professor Koppen underestimated. It is noted that plaintiff’s petition in case 418-60 alleges that the damage caused plaintiff by defendant’s infringement of the Saulnier '752 patent is an amount measured as 5 percent of the average cost of a slidable and jettisonable canopy with its accessories, multiplied by the number of such canopies procured as original equipment or as spares between December 9, 1954 and August 2, 1955. 69. Plaintiff’s estimate of a total cost of $81,447,866 multiplied by 15 percent gives a royalty amounting to $12,217,179.90. 70. Plaintiff’s estimate of a total cost of $81,447,866 increased by 50 percent (for alleged underestimating) and multiplied by 15 percent, gives a royalty amounting to $18,325,769.85. 71. Application of plaintiff’s 5 percent damage rate to plaintiff’s estimate of a total cost of $81,447,866 gives a royalty amounting to $4,072,393.30. 72. Application of plaintiff’s 15 percent rate to the total estimate of a cost of $32,794,226 (based on defendant’s responses to calls) gives a royalty amounting to $4,919,133.90. 73. Application of plaintiff’s 5 percent damage rate to the total estimate of a cost of $32,794,226 gives a royalty amounting to $1,639,711.30. 74. In Badowski v. United States, 150 Ct. Cl. 482, 278 F. 2d 934, decided June 8, 1960, the court allowed reasonable and entire compensation for patent infringement at the rate of 3 percent of defendant’s costs on the first one million dollars and 2 percent of its costs in excess of that amount, with 4 percent per annum to date of payment to compensate plaintiff for the delay in payment. Application of this rate to the defendant’s estimated total cost of $32,794,226 gives a" }, { "docid": "9399770", "title": "", "text": "the applicability of 28 U.S.C. § 1498(a)) in refusing, under any circumstances, to take a unilateral license under the Mock patent. If Woodward had taken a unilateral license as a result of bona fide arm’s-length negotiations with Bendix, the rate established by such a license could have been absorbed in the 15 percent allowable profit and the license would then have been entitled to great weight in determining the fair market value of a license under the patent. The government, however, obtained a license under the eminent domain theory and gave no consideration in return. That being the case, the foreign licenses under the Mock patent are most analogous since the licensees in those cases were not obligated to provide any consideration other than payment of money in fulfillment of their obligations under the licenses. VII. Conclusion Computation of the basic compensation at a 7.5 percent rate is set forth in Appendix D. Application of the respective quinquennial delay compensation rates to the basic compensation for the respective periods involved is set forth in Appendices E-l and E-2. The total recovery to which Bendix is entitled is summarized in Appendix F. Applying a 7.5 percent rate to the base of $104,301,603 (Appendix C), Bendix is entitled to recover $7,822,620, plus delay compensation in the amount of $6,070,507 for the 1307 model fuel control systems and $2,368,868 for the MFC fuel control systems, for a total judgment of $16,261,995, with additional delay compensation to be paid by defendant at the rate of $2,572 per day from February 1, 1980, to the date of payment of the judgment. Judgment is entered accordingly. CONCLUSION OF LAW Upon the findings and foregoing opinion, which are adopted by the court, the court concludes as a matter of law that plaintiff is entitled to recover sixteen million two hundred sixty-one thousand nine hundred and ninety-five dollars ($16,261,995), plus delay compensation at the rate of two thousand five hundred seventy-two dollars ($2,572) per day from February 1, 1980, to the date of payment of the judgment, and judgment is entered for plaintiff in that amount. FUEL CONTROLS" }, { "docid": "16343893", "title": "", "text": "50 percent (for alleged underestimating) and multiplied by 15 percent, gives a royalty amounting to $18,325,769.85. 71. Application of plaintiff’s 5 percent damage rate to plaintiff’s estimate of a total cost of $81,447,866 gives a royalty amounting to $4,072,393.30. 72. Application of plaintiff’s 15 percent rate to the total estimate of a cost of $32,794,226 (based on defendant’s responses to calls) gives a royalty amounting to $4,919,133.90. 73. Application of plaintiff’s 5 percent damage rate to the total estimate of a cost of $32,794,226 gives a royalty amounting to $1,639,711.30. 74. In Badowski v. United States, 150 Ct. Cl. 482, 278 F. 2d 934, decided June 8, 1960, the court allowed reasonable and entire compensation for patent infringement at the rate of 3 percent of defendant’s costs on the first one million dollars and 2 percent of its costs in excess of that amount, with 4 percent per annum to date of payment to compensate plaintiff for the delay in payment. Application of this rate to the defendant’s estimated total cost of $32,794,226 gives a royalty in the amount of $665,884.52 plus 4 percent per an-num to date of payment. 75. The evidence indicates that about 1,100 aircraft embodying the cockpit roof construction illustrated and described in the Saulnier '752 patent were built in France between 1938 and 1948. 76. In this accounting, defendant contends that reasonable and entire compensation should be an amount somewhat less than $4 per canopy. Defendant also “reserves its right to request, at final hearing, a reconsideration of the validity of the Saulnier patent * * Defendant’s expert, Capt. Robert A. Lavender, U.S.N. (Ret.), concluded that $4 per canopy is a reasonable and liberal amount per canopy for defendant’s use of the Saulnier invention. Application of defendant’s $4 rate to the 12,965 infringing canopies procured by defendant gives a royalty amounting to $51,860 at a royalty rate of .158 of 1 percent on defendant’s estimate of canopy costs. 77. The $4 rate urged by defendant is the rate arrived at in friendly settlement negotiations in France under the Blum-Bymes Agreements noted in finding 44. A" }, { "docid": "17034998", "title": "", "text": "case” (emphasis supplied), but there is a total absence of proof of fair market value of any lands as of “the date title was transferred” unless the date of trans fer of title happened to be January 1,1912. Moreover, plaintiffs’ contention is patently inconsistent with their 1966 stipulation, pursuant to which an expensive and time consuming trial has been conducted. In the premises, there is no valid basis for determining the fair market value of some of the lands in suit at a different time. The suggestion that allowance of interest on the value of all lands taken (except lands patented to settlers) from the date title was transferred “comports” with Three Affiliated Tribes, supra, is specious. While the court did there hold, inter alia, that the proper valuation date for certain lands was the date on which title passed, that case did not involve any “question of selecting an average date of valuation for * * * lands taken on varying dates.” 182 Ct. Cl. at 568, 390 F. 2d at 700. Having stipulated to an average date of valuation for all lands “to avoid burdensome detailed computation of value as of the date of disposal of each separate tract”, plaintiffs (and defendant) are bound by it. The “date of taking” of all lands in suit is January 1,1912. VI Finally, plaintiffs claim that their recovery should include interest, not as interest but as a part of just compensation, at the rate of 5 percent per annum from “the date of taking” (Section V, supra) to July 1, 1934; at the rate of 4 percent per annum from July 1, 1934 to May 31, 1959; and at the rate of 6 percent per annum thereafter. Recovery should include interest at the rate of 5 percent per annum from January 1, 1912 to January 1, 1934. Uintah and White River Bands of Ute Indians v. United States, 139 Ct. Cl. 1, 11-12, 152 F. Supp. 953 (1957), and cases there cited. From January 2, 1934, to the date of payment, recovery should include interest at the rate of 4 percent" }, { "docid": "14604393", "title": "", "text": "rate of three percent of defendant’s costs on the first one million dollars for parachute release devices which infringed plaintiff’s invention and two percent of its costs in excess of that amount with four percent per annum to date of payment to compensate plaintiff for the delay in payment. The amount will be determined pursuant to Rule 38 (c). It is so ordered. DttRfee, Judge; Laeamoke, Judge, Madden, Judge; and Jokes, Chief Judge, concur. FINDINGS OF FACT The court, having considered the evidence, the report of Trial Commissioner Donald E. Lane, and the briefs and argument of counsel, makes findings of fact as follows: 1. On May 1, 1956, the court held that plaintiff’s patent No. 2,365,445 is valid, that defendant’s F-l parachute release device infringes said patent, and that plaintiff is entitled to recover reasonable and entire compensation therefor. 135 C. Cls. 93, 140 F. Supp. 544, 109 USPQ 293. Defendant’s first motion for new trial was overruled October 9,1957, its second motion for new trial was overruled December 4,1957, and its third motion for new trial was overruled July 16, 1958, the opinion of the court being delivered by Judge Whitaker. 164 F. Supp. 252, 118 USPQ 358. 2.The accounting period in this suit extends from August 7,1947, to January 31, 1958. In a stipulation filed October 2,1959, the parties agreed— That 191,274 devices held to infringe were delivered to the defendant during the period extending from August 7, 1947 to January 31, 1958, for which the defendant paid Eight Million, Six Plundred Forty-One Thousand, Nine Hundred Twenty-One Dollars and Forty-Three Cents ($8,641,921.43). ***** That deliveries by years of devices held to infringe were made to defendant during the accounting period, as follows: Year Amount Units 1947_ $0.00 0 1948_ 0.00 0 1949_ 0.00 0 1950_ 416, 823. 68 14, 560 1951_ 0.00 0 1952_ 30, 614. 87 1, 027 1953_ 850, 504.23 29,120 1954_ 241, 063.70 8,170 1955_ 215, 363.00 3, 805 1956_ 2,275, 339. 38 42, 839 1957_ 4,323,434.82 85,748 1958_ 288, 777. 75 6, 005 Totals_$8,641,921.43 191,274 ***** 3. The average price paid by defendant" }, { "docid": "16343877", "title": "", "text": "Frenchman. Negotiations lasted over a period of 18 months. A price was agreed upon of $14 per plane for from 26,000 to 27,000 planes, a total consideration of 99,090 British pounds. At the then rate of exchange, this amounts to $376,542. Concerning this settlement, Mr. Guerbilsky said, * * We achieved very satisfactory results for both sides.” (Tr. 502.) Under the Byrnes-Blum Agreement the French Government assumed this country’s liability to French citizens for patent infringement during World War II. Plaintiff presented to it a claim for infringement by the United States, and settled its claim for the period December 18, 1941 to September 2, 1945 at $4 a canopy for 127,500 canopies. This compares with $14 a canopy agreed upon with the British Government. We can only indulge in speculation as to the reason for plaintiff’s settlement with his own government at a figure so much lower than that he secured from Great Britain, but, be that as it may, the settlement with Great Britain being an arm’s-length transaction, is much the better guide. If we adjust this settlement for the difference in the economy then and now, we have a figure of about $18 per canopy, or a total amount of $237,996. Had the parties entered into negotiations for a license to use plaintiff’s invention on the basis of 13,000 planes, the canopies on which were expected to cost, say $1,000 per canopy, or a total cost of about $13 million, we think the parties might well have agreed upon a royalty at the approximate rate of 3 percent on the first $5 million (instead of the first $1 million recommended by the Trial Commissioner, influenced by our decision in Badowshi v. United States, 150 Ct. Cl. 482, 278 F. 2d 934), and 2 percent on the excess. At $1,000 per canopy this would amount to $310,000. This is to be compared with the royalty agreed upon in the British settlement, adjusted for monetary fluctuations, which amounts to $237,996. We are obliged to enter a judgment somewhat in the nature of a jury verdict. Taking all the foregoing" }, { "docid": "16343894", "title": "", "text": "royalty in the amount of $665,884.52 plus 4 percent per an-num to date of payment. 75. The evidence indicates that about 1,100 aircraft embodying the cockpit roof construction illustrated and described in the Saulnier '752 patent were built in France between 1938 and 1948. 76. In this accounting, defendant contends that reasonable and entire compensation should be an amount somewhat less than $4 per canopy. Defendant also “reserves its right to request, at final hearing, a reconsideration of the validity of the Saulnier patent * * Defendant’s expert, Capt. Robert A. Lavender, U.S.N. (Ret.), concluded that $4 per canopy is a reasonable and liberal amount per canopy for defendant’s use of the Saulnier invention. Application of defendant’s $4 rate to the 12,965 infringing canopies procured by defendant gives a royalty amounting to $51,860 at a royalty rate of .158 of 1 percent on defendant’s estimate of canopy costs. 77. The $4 rate urged by defendant is the rate arrived at in friendly settlement negotiations in France under the Blum-Bymes Agreements noted in finding 44. A French report by one Devaux describes the settlement approved for the French government on September 6, 1952 (defendant’s exhibit 3, folder No. 3). The report indicates that Raymond Saulnier was indemnified for “irregular use” of the Saulnier '752 patent in the United States during the period December 18,1941, to September 2,1945, at the rate of $4 per canopy for 127,500 canopies, including replacement canopies. There is no evidence that the French settlement negotiations involved any litigation to determine issues of patent validity, patent infringement, or patent accounting. 78. Testimony for plaintiff given by Monsieur Serge Guerbilsky indicates that a settlement was also negotiated on a friendly basis with, the British government (about 1948) for the British wartime use of Saulnier British patent 472,366, and that the total settlement on 26,000 to 27,000 aircraft amounted to about 99,090 British pounds before income taxes. Guerbilsky also testified that the average cost of the British canopies in wartime was about 100 British pounds each. Figuring the British pound at $3.80 in 1948, a settlement amounting to $376,542 (99,090" }, { "docid": "11932986", "title": "", "text": "for from 26,000 to 27,000 planes, a total consideration of 99,090 British pounds. At the then rate of exchange, this amounts to $376,542. Concerning this settlement, Mr. Guerbilsky said, “ * * * We achieved very satisfactory results for both sides.” (Tr. 502.) Under the Byrnes-Blum Agreement the French Government assumed this country’s liability to French citizens for patent infringement during World War II. Plaintiff presented to it a claim for infringement by the United States, and settled its claim for the period December 18, 1941 to September 2, 1945 at $4 a canopy for 127,500 canopies. This compares with $14 a canopy agreed upon with the British Government. We can only indulge in speculation as to the reason for plaintiff's settlement with his own government at a figure so much lower than that he secured from Great Britain, but, be that as it may, the settlement with Great Britain being an arm’s-length transaction, is much the better guide. If we adjust this settlement for the difference in the economy-then and now, we have a figure of about $18 per canopy, or a total amount of $237,996. Had the parties entered into negotiations for a license to use plaintiff’s invention on the basis of 13,000 planes, the canopies on which were expected to cost, say $1,000 per canopy, or a total cost of about $13 million, we think the parties might well have agreed upon a royalty at the approximate rate of 3 percent on the first $5 million (instead of the first $1 million recommended by the Trial Commissioner, influenced by our decision in Badowski v. United States, 278 F.2d 934, 150 Ct.Cl. 482), and 2 percent on the excess. At $1,000 per canopy this would amount to $310,000. This is to be compared with the royalty agreed upon in the British settlement, adjusted for monetary fluctuations, which amounts to $237,996. We are obliged to enter a judgment somewhat in the nature of a jury verdict. Taking all the foregoing into consideration, we think the compensation, which is just to both parties, amounts to the sum of $250,000. We" } ]

[ { "docid": "16816643", "title": "", "text": "at 849, relying upon the Supreme Court’s language in Ragsdale, that an FMLA plaintiff must show that she “has been prejudiced by the violation in some way.” Ragsdale, 535 U.S. at 89, 122 S.Ct. 1155. The Supreme Court in Ragsdale did not suggest, much less conclude, that “prejudice” in the FMLA context is synonymous with “legal damages.” It is clear to us that, in order to prove that she was “prejudiced” by an FMLA violation, a plaintiff such as Evans need only demonstrate some harm remediable by either “damages” or “equitable relief.” See id. (“The remedy is tailored to the harm suffered.”); Anderson v. Discovery Cmmc’ns., LLC, 517 Fed.Appx. 190, 198 (4th Cir.2013) (“Such prejudice can be proven by showing that the employee ... suffers some loss in employment status remediable through ‘appropriate’ equitable relief....”). In addition to the question of whether Books-A-Million interfered with Evans’ FMLA rights, there are other un resolved issues of material fact requiring a trial, such as whether Evans was “prejudiced” by any FMLA interference. Based upon the evidence adduced on summary judgment, a reasonable fact finder could conclude that Meeks emphasized Evans’ job performance while she was home with her newborn in deciding to reassign her to an inferior position with fewer responsibilities and opportunities for advancement. It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation. And, the prejudice or harm allegedly suffered by Evans may well be remediable by reinstatement. See 29 U.S.C. § 2617(a)(1)(B). The district court may also consider the equitable remedy of “front pay” for an appropriate period if it determines that reinstatement is not viable in this case. Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798, 810-11 (8th Cir.2013) (front pay is an equitable remedy under the FMLA); Weatherly v. Alabama State University, 728 F.3d 1263, 1271 (11th Cir.2013) (“In deciding whether to award front pay, rather than reinstatement, courts look to" } ]

[ { "docid": "14922136", "title": "", "text": "reinstatement after maternity leave. Keppel Amfels emphasizes that, as a secondary employer, it had no obligation to provide reinstatement without a request from Perma-Temp. But Keppel Amfels did have a responsibility not to interfere with Cuellar’s substantive FMLA right for Perma-Temp to make such a request. Indeed, that is the crux of Cuel-lar’s § 2615(a)(1) claim: “Keppel Am-fels’[s] actions ... convinced both Perma-Temp and Cuellar it was fruitless to refer her back to Keppel Amfels for reinstatement.” In my view, then, Cuellar need not prove intent to succeed on her § 2615(a)(1) claim and the district court’s application of the McDonnell Douglas burden-shifting regime was improper. That said, I agree that Cuellar cannot state a genuine issue of material fact even absent an intent requirement. For this reason, I join fully in the court’s opinion. . The First and Fourth Circuits also use these terms. See, e.g., Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir.1998); Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir.2006). . At times, we have classified claims pursuant to § 2615(a)(1) as \"prescriptive” and those pursuant to § 2615(a)(2) as \"proscriptive.” See, e.g., Haley, 391 F.3d at 649 (\"claims for violations of [substantive-FMLA] rights invoke entitlement or interference theories and are brought under § 2615(a)(1),” whereas \"[c]laims for violations of these rights are brought under § 2615(a)(2)”); Williams v. Lyondell-Citgo Ref. Co., Ltd., 247 Fed.Appx. 466, 468 n. 1 (5th Cir.2007) (The FMLA \"has one provision granting prescriptive or substantive rights, and one granting proscriptive rights. See § 29 U.S.C. 2615(a)(1) (granting prescriptive rights); 29 U.S.C. § 2615(a)(2) (granting proscriptive rights).”). At other times, however, we have described different substantive provisions of the FMLA — such as 29 U.S.C. § 2612(a)(1)(D)'s requirement that an employer allow for up to twelve weeks of leave—as \"prescriptive,” and the prohibitions in both § 2615(a)(1) and § 2615(a)(2) as \"proscriptive.” See, e.g., Elsensohn, 530 F.3d at 372; Hunt, 277 F.3d at 763. Moreover, we have sometimes used the \"interference” and \"retaliation” labels favored by our sister circuits to describe a plaintiff's FMLA claims." }, { "docid": "11747924", "title": "", "text": "LLP, 552 F.3d 520, 529 (7th Cir.2008))). Perry does not set out the full test for the indirect method, nor does she conduct an analysis under the indirect method. . Although it appears to the Court that Perry's claim is one for retaliation under § 2615(a)(1) based on her allegation that she was fired because she took FMLA leave and under § 2615(a)(2) because she opposed protected conduct, Perry also alleges an interference claim in her Amended Complaint and defends her interference claim in her response brief. Many Seventh Circuit cases address similar wrongful termination claims that are based solely on the taking of FMLA leave (when there is no § 2615(a)(2) retaliation claim for \"opposing” conduct) under both a retaliation theory as well as an interference theory, even when the plaintiff appears only to make an intent-based argument for the termination. See Nicholson v. Pulte Homes Corp., 690 F.3d 819, 827 (7th Cir.2012) (\"Under the FMLA, termination can constitute a denial of benefits, and a claim based on wrongful termination can be brought either as a retaliation or an interference claim.” (citing Kauffman v. Fed. Exp. Corp., 426 F.3d 880, 884 (7th Cir.2005) (\"A claim under the FMLA for wrongful termination can be brought under either a discrimination/retaliation or interference/entitlement theory....”))); Goelzer, 604 F.3d at 993 (considering the plaintiff’s termination as the basis for an FMLA interference claim as well as a retaliation claim in a case in which the plaintiff was discharged two weeks before the commencement of FMLA leave with an effective discharge date of ten days after the FMLA leave period (citing Simpson v. Office of the Chief Judge of the Circuit Court of Will Cnty., 559 F.3d 706, 712 (7th Cir.2009) (\"Firing an employee to prevent her from exercising her right to return to her prior position can certainly interfere with that employee's FMLA rights.”))); see also Pagel, 695 F.3d at 629-631 (considering the plaintiff's claim that the \"employer interfered with his employment by failing to make a reasonable adjustment to its employment expectations to account for his FMLÁ leave and then terminating him when" }, { "docid": "1948079", "title": "", "text": "by the statute; (3) he was entitled to leave under the FMLA; (4) he gave his employer adequate rioticé of his intention to take leave; and (5) the employer denied him FMLA benefits to which he was. entitled. See Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d 508, 516, 523 (D.Md.2008). Plaintiff has only argued that Defendants interfered With his FMLA rights by terminating him and refusing to allow him to return to his prior position at the conclusion of his leave period. See [Doc. No. 19] at pp. 14 n.13,15 (Plaintiffs Response Brief). “The Fourth Circuit analyzes claims that an employer failed to restore an employee to his or her pre-FMLA position under the interference theory ....” Santorocco v. Chesapeake Holding Co., LLC, 2010 WL 2464972, at *4, 2010 U.S. Dist. LEXIS 58160, at *10 (D.Md.2010) (citing Yashenko v. Harrah’s N.C. Casino Co., 446 F.3d 541, 550-51 (4th Cir.2006)). An FMLA interference claim differs from an FMLA retaliation claim, in that “motive is largely irrelevant when analyzing an interference claim.” See Santorocco, 2010 WL 2464972, at *4, 2010 U.S. Dist. LEXIS 58160, at *11. However, “FMLA leave does not provide an employee any greater rights than, he or she would have had without taking leave.” Mercer v. Are of Prince Georges Cnty., Inc., 532 Fed.Appx. 392, 396 (4th Cir.2013); accord 29 U.S.C. § 2614(a)(3)(B) (2013) (“[N]othing in this section shall be construed to entitle any restored employee to ... any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave”). Assuming Plaintiff has established a prima facie case of interference, the Plaintiffs claim must still fail if it is shown that he was discharged for a legitimate reason — the 2013 RIF — and that Plaintiff “would not otherwise have been employed at the time reinstatement is requested.” See Yashenko, 446 F.3d at 547; accord Pruitt v. Peninsula Reg’l Med. Ctr., 2014 WL 2916863, at *4, 2014 U.S. Dist. LEXIS 86180, at *9 (D.Md.2014) (“[The] distinction [between retaliation and interference claims] is" }, { "docid": "20126607", "title": "", "text": "violates company policy would serve as a legitimate, nondiscriminatory reason for termination in any event. Campbell responds on two fronts. First, he argues that Verizon “fired him for taking the [FMLA] leave.” Second, he argues that Verizon’s proffered reason is pretextual. Neither of Campbell’s arguments is convincing, but the standard for establishing a prima facie case is not high and, based solely on the temporal proximity between the taking of FMLA leave and termination, the Court will accept, for purposes of discussion, that he establishes a prima facie case. Nevertheless, summary judgment will still be granted for Verizon because Campbell offers no evidence to rebut the bonafides of the legitimate, nondiscriminatory reason set forth by Verizon for terminating his employment. Retaliation claims brought pursuant to the FMLA are analyzed according to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir.2006). “[T]o succeed on [a] retaliation claim, [an employee] must first make a prima facie showing ‘that he engaged in protected activity, that the employer took adverse action against him, and that the adverse action was causally connected to the plaintiffs protected activity.’ ” Id. at 551 (quoting Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir.1998)). If an employee establishes a prima facie case, the burden then shifts to the employer to offer a “nondiscriminatory explanation” for the adverse action taken. Id. But once such a legitimate, non-discriminatory explanation has been offered, the burden shifts back to the employee, who “bears the burden of establishing that the employer’s proffered explanation is pretext for FMLA retaliation.” Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502 (4th Cir.2001). 1. Prima Facie Case The parties agree that the sole disputed element of Campbell’s prima facie case is the causative link between the exercise of his FMLA rights and his subsequent termination. (Def.’s Br. at 8; PL’s Opp’n at 6-7.) Although not clearly articulated by Campbell, proximity in time between the two events is the sole fact giving rise" }, { "docid": "21452726", "title": "", "text": "Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002). Summary judgment is appropriate only if there is “no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). For the following reasons, we affirm the judgment. II. Adams contends that the Board both interfered with his FMLA rights and retaliated against him for taking medical leave. A. The FMLA grants employees the prescriptive right to take up “to a total of 12 workweeks of leave during any 12-month period” when, inter alia, an employee is burdened with “a serious health condition that makes the employee unable to perform” his job. 29 U.S.C. § 2612(a)(1)(D). When returning from FMLA leave, an employee is also entitled to be restored to his previous position or an equivalent position, so long as he would have retained that position or an equivalent one absent the taking of leave. Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 546-47 (4th Cir.2006) (citing 29 U.S.C. § 2614(a)). That is, there is “no absolute right to restoration to a prior employment position.” Id. at 549. Nonetheless, it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” an employee’s FMLA rights. 29 U.S.C. § 2615(a)(1). To make out an “interference” claim under the FMLA, an employee must thus demonstrate that (1) he is entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) that interference caused harm. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002) (citing 29 U.S.C. § 2617(a)(1)); Wonasue v. Univ. of Md. Alumni Ass’n, 984 F.Supp.2d 480, 495 (D.Md.2013). We begin by noting one salient fact: Adams was not denied FMLA leave. In fact, he took three separate medical leaves totaling well over twelve weeks. The Supreme Court has observed that the “purpose of [an interference claim] is to permit a court to inquire into matters such as whether the employee would have exercised his or her FMLA rights in the absence of the employer’s actions.” Rags-dale, 535 U.S. at 91," }, { "docid": "15340193", "title": "", "text": "novo a district court’s grant of summary judgment.” Rester v. Stephens Media, LLC, 739 F.3d 1127, 1130 (8th Cir.2014) (citation omitted). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We “consider[] the facts in the light most favorable to [Ebersole] and giv[e] her the benefit of all reasonable inferences in the record.” Holmes v. Trinity Health, 729 F.3d 817, 821 (8th Cir.2013) (citation omitted). There is no discrimination-case exception to a district court’s power to grant summary judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011) (en banc). “The FMLA entitles an employee to twelve workweeks of leave during any twelve-month period if he or she has a serious health condition that makes the employee unable to perform the functions of the position of such employee.” Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1015 (8th Cir.2013) (quotations and citations omitted). We recognize two types of claims under the FMLA: interference and retaliation claims. Bone v. G4-S Youth Servs., LLC, 686 F.3d 948, 958 (8th Cir.2012). “In a retaliation claim, the employee alleges that the employer discriminated against her for exercising her FMLA rights.” Id. (quotation and citation omitted). Consequently, “an employer may not consider an employee’s use of FMLA leave as a negative factor in an employment action.” Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir.2006) (quotation and citation omitted). “However, an employee who requests FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave.” Bone, 686 F.3d at 958 (quotation, alteration, and citation omitted). As a result, if the employer demonstrates that it would have terminated the employment had the employee not exercised her FMLA rights, then the employer faces no liability. Id. at 958-59. A. Direct Evidence Plaintiffs may demonstrate discrimination by introducing direct or indirect evidence. See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.2004). Direct evidence reveals a" }, { "docid": "19342654", "title": "", "text": "Carrero’s retaliation claim.) To withstand a motion to dismiss on her interference claim, a plaintiff need only plausibly state that she is entitled to the disputed leave. See Colburn, 429 F.3d at 331 (describing summary judgment standard). Unlike in a retaliation claim, “no showing as to employer intent is required.” Id. The key issue is simply whether the employer provided its employee the benefits to which she was entitled per the FMLA. Hodgens, 144 F.3d at 159. In her complaint, Carrero does not assert that defendants .wrongfully denied her requests for FMLA leave. To the contrary, she says PREPA permitted her to take FMLA leave both in November 2007 and June 2008. Ruiz also approved her third FMLA leave request in September 2010. Instead, Carrero says defendants interfered with her FMLA rights by terminating her employment once she “activated” her third leave in October 2010, rather than permitting her to take the three months’ leave she requested. Carrero admits her lawyer was notified of her discharge — originally effective October 3 but amended to October 31 — “by the middle of October! ] 2010.” She claims she was not informed of her termination at that time. Rather, she insists that she remained employed when she properly triggered her previously approved FMLA leave on October 22, was entitled to that leave, and was “protected by the law at the time she was illegally discharged from her employment.” However, the FMLA does not protect an employee from discharge for any reason while she is on leave — rather, as we discussed in the retaliation context, it protects her only from discharge because she requests or takes FMLA leave. See 29 C.F.R. § 825.220(c). Thus, while Carrero may have had a claim for leave prior to October 31, once her discharge took effect, Carrero was no longer entitled to FMLA leave benefits. See 29 C.F.R. § 825.216(a)(1). As a result, she cannot state a plausible FMLA interference claim, and the district court correctly granted defendants’ Rule 12(b)(6) motion to dismiss on this ground as well. C. Motion to Amend the Pleadings In a" }, { "docid": "16012105", "title": "", "text": "supervisor approximately six months after Till’s termination. (PL’s Ex. 21, Maxwell Promotion Memo). This evidence questions whether Till’s position was truly eliminated through the RIF, as it appears that her position was filled at all times and that the number of security supervisors at Spectrum actually increased in 2010. For all these reasons, the Court denies Defendant’s motion for summary judgment as to Till’s claims under the ADA and Michigan’s PWDCRA. The Court now considers Till’s FMLA claims. B. Claims of FMLA Violations — Interference/Retaliation Till alleges that Spectrum violated the FMLA by denying her return to work after her FMLA leave (Count I). Till asserts claims of interference and retaliation under the FMLA. Till presents sufficient evidence to create genuine issues of material fact related to these claims. 1. Interference A plaintiff has an interference cause of action under the FMLA when an employer “interfered with, restraints] or den[ies] the exercise of or attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). To prevail on an interference claim, a plaintiff must show that (1) he or she is an eligible employee, (2) the defendant is an employer, (3) the employee was entitled to leave under the FMLA, (4) the employee gave the employer notice of the intention to take leave, and (5) the employer denied the employee FMLA benefits to which he or she was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003). Under the interference theory, “[t]he issue is simply whether the employer provided its employee the entitlements set forth in the FMLA — for example, a twelve-week leave or reinstatement after taking a medical leave.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 507-08 (6th Cir.2006). The employer’s intent is not a relevant part of the interference inquiry under § 2615, and the Court need not apply the McDonnell Douglas burden-shifting in such cases. Id. at 507-08. However, the entitlement to FMLA rights is not absolute, as an employer does not interfere with an employee if the employer had another legitimate reason to terminate the employee that" }, { "docid": "2213565", "title": "", "text": "any such comparator evidence in her opposition to summary judgment. The district court also held that FedEx had not denied Laing’s right to be restored to an equivalent position. Id. at 1347. The court noted that FedEx placed Laing on investigatory suspension on the very morning that she returned from leave. Id. at 1343. But the court ruled that this did not create a triable issue on Laing’s equivalent position claim because she was classified as a full-time employee and received full-time pay until her termination. Id. at 1348. Laing then filed this appeal, challenging the district court’s grant of summary judgment on the aforementioned claims. II. Laing’s principal argument on appeal is that FedEx violated the FMLA when it retaliated against her by suspending and discharging her for taking medical leave. See 29 U.S.C. § 2615(a); see also 29 C.F.R. § 825.220(c) (“[Employers cannot use the taking of FMLA leave as a negative factor in employment actions.”). FMLA retaliation claims are analogous to discrimination claims brought under Title VIL Yashenko v. Harrah’s N.C. Casino Co., 446 F.3d 541, 551 (4th Cir.2006). Thus, a plaintiff may succeed either by providing direct evidence of discrimination or by satisfying the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 n. 4 (4th Cir.2005). Laing contends that her claim should survive summary judgment under both approaches, so we consider each in turn. Laing argues first that summary judgment was inappropriate because she introduced direct evidence that FedEx discriminated against her for taking protected FMLA leave. Direct evidence encompasses “conduct or statements” that both (1) “reflect directly the alleged discriminatory attitude,” and (2) “bear directly on the contested employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir.2006) (internal quotation marks omitted). Laing first points to a purported conversation she had with Operations Manager Donnie Hicks. She contends that Hicks directly displayed a discriminatory attitude when, upon being asked whether Laing’s FMLA leave would be a" }, { "docid": "20126606", "title": "", "text": "fact that Campbell received a benefit not required by the Act — full payment for at least some of his time off — does not impose liability upon Verizon. Campbell understood from the written notice provided that his approved intermittent leave would count as FMLA leave and he suffered no injury as a result. And the fact that Verizon investigated Campbell’s activities, alone, cannot give rise to an interference claim. Accordingly, the Court will grant Verizon’s motion for summary judgment on the interference claim. B. Retaliation The more exacting question in the case involves Campbell’s retaliation claim. Verizon’s position is that Campbell, in effect, defrauded the company by using his approved FMLA leave to take a vacation in Atlantic City. Fraud being the sole reason for his termination, Verizon argues that there is no causal connection between his use of FMLA leave and his subsequent termination and, therefore, he cannot establish a prima facie case. And according to Verizon, even if Campbell could establish a prima facie case of retaliation, its argument that such fraud violates company policy would serve as a legitimate, nondiscriminatory reason for termination in any event. Campbell responds on two fronts. First, he argues that Verizon “fired him for taking the [FMLA] leave.” Second, he argues that Verizon’s proffered reason is pretextual. Neither of Campbell’s arguments is convincing, but the standard for establishing a prima facie case is not high and, based solely on the temporal proximity between the taking of FMLA leave and termination, the Court will accept, for purposes of discussion, that he establishes a prima facie case. Nevertheless, summary judgment will still be granted for Verizon because Campbell offers no evidence to rebut the bonafides of the legitimate, nondiscriminatory reason set forth by Verizon for terminating his employment. Retaliation claims brought pursuant to the FMLA are analyzed according to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir.2006). “[T]o succeed on [a] retaliation claim, [an employee] must first make a" }, { "docid": "21452725", "title": "", "text": "the district court dismissed all of the allegations in the Second Amended Complaint for failure to state a claim, except for Adams’s FMLA interference and retaliation claims and his ADA discrimination and retaliation claims. See J.A. 61-126. After discovery, the district court granted the Board’s motion for summary judgment on those remaining claims. See J.A. 625-55. On appeal, Adams presses his various FMLA and ADA claims, all of which arise from the same set of operative facts. We review de novo both the grant of a motion to dismiss for failure to state a claim and the grant of a motion for summary judgment. Bland v. Roberts, 730 F.3d 368, 373 (4th Cir.2013); E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 400 (4th Cir.2011). Under our summary judgment standard, of course, the facts are generally viewed in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002). Summary judgment is appropriate only if there is “no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). For the following reasons, we affirm the judgment. II. Adams contends that the Board both interfered with his FMLA rights and retaliated against him for taking medical leave. A. The FMLA grants employees the prescriptive right to take up “to a total of 12 workweeks of leave during any 12-month period” when, inter alia, an employee is burdened with “a serious health condition that makes the employee unable to perform” his job. 29 U.S.C. § 2612(a)(1)(D). When returning from FMLA leave, an employee is also entitled to be restored to his previous position or an equivalent position, so long as he would have retained that position or an equivalent one absent the taking of leave. Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 546-47 (4th Cir.2006) (citing 29 U.S.C. § 2614(a)). That is, there is “no absolute right to restoration to a prior employment position.” Id. at 549." }, { "docid": "18019226", "title": "", "text": "on Makowski’s FMLA interference claim. Under the FMLA, an employer must not “interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA rights. 29 U.S.C. § 2615(a)(1). An employee on FMLA leave has the right to be restored to the same or an equivalent position that she had before she took leave. 29 U.S.C. § 2612. To prevail on an FMLA interference claim, a plaintiff must establish that: “(1) she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.” Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 993 (7th Cir.2010) (citing Burnett, 472 F.3d at 477). The parties do not dispute Makowski’s satisfaction of the first four requirements. The remaining issue is whether a jury could find that the defendants denied Makowski her right to reinstatement, an FMLA benefit to which she was entitled, because she took FMLA leave. See Goelzer, 604 F.3d at 993. Again, O’Gara’s previously excluded statements to Makowski that Makowski was let go because she took medical leave provide a possible explanation for the termination decision that a jury could very well choose to believe. Because Makowski has satisfied the requirements of an FMLA interference claim, summary judgment on this claim is not appropriate and therefore its grant in favor of the defendants is reversed. III. Conclusion For the foregoing reasons, we Reverse the district court’s evidentiary ruling regarding O’Gara’s statements, Reverse the grant of summary judgment in favor of the defendants on Makowski’s PDA, FMLA retaliation, and FMLA interference claims, and REMAND for proceedings consistent with this opinion. . The district court denied a motion by the defendants to strike Makowski's additional facts due to an alleged violation of the local rules, but acknowledged that it would consider the substance of the motion in ruling on the pending motion for summary judgment. While the district court in fact did not consider" }, { "docid": "14922135", "title": "", "text": "for failure to award an FMLA entitlement separately from her retaliation claim, imposing the McDonnell Douglas burden-shifting regime only in the context of the latter); Mauder, 446 F.3d at 579-85 (same). So do cases in our sister circuits. For example, the Tenth Circuit has explained, “[i]f an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave, a deprivation of this right is a violation regardless of the employer’s intent.” Smith, 298 F.3d at 960 (emphasis added). In the joint employment context, the Sixth Circuit has likewise noted that an “employer’s intent is not directly relevant to the entitlement inquiry.” See Grace v. USCAR, 521 F.3d 655, 670 (6th Cir.2008) (citing Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir.2006)). Applying these principles to this case, I would look to the substance of Cuellar’s claim to determine whether it arises from the deprivation of an FMLA entitlement or from punishment exacted for her exercise of an FMLA right. Here, Cuellar alleges that she was denied a substantive FMLA right: reinstatement after maternity leave. Keppel Amfels emphasizes that, as a secondary employer, it had no obligation to provide reinstatement without a request from Perma-Temp. But Keppel Amfels did have a responsibility not to interfere with Cuellar’s substantive FMLA right for Perma-Temp to make such a request. Indeed, that is the crux of Cuel-lar’s § 2615(a)(1) claim: “Keppel Am-fels’[s] actions ... convinced both Perma-Temp and Cuellar it was fruitless to refer her back to Keppel Amfels for reinstatement.” In my view, then, Cuellar need not prove intent to succeed on her § 2615(a)(1) claim and the district court’s application of the McDonnell Douglas burden-shifting regime was improper. That said, I agree that Cuellar cannot state a genuine issue of material fact even absent an intent requirement. For this reason, I join fully in the court’s opinion. . The First and Fourth Circuits also use these terms. See, e.g., Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir.1998); Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir.2006). . At times, we" }, { "docid": "1948078", "title": "", "text": "WL 1331166, at *4, 2013 U.S. Dist. LEXIS 45394, at *11-12 (M.D.N.C.2013); Allen v. Fed. Express Corp., 2011 WL 1260225, at *9, 2011 U.S. Dist. LEXIS 34812, at *26 n. 5 (M.D.N.C. 2011); Eady v. Veolia Transp. Services, Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Brand v. N.C. Dep’t of Crime Control & Pub. Safety, 352 F.Supp.2d 606, 618 (M.D.N.C.2004); accord Ferdinand-Davenport v. Children’s Guild, 742 F.Supp.2d 772, 777 (D.Md.2010); Jones v. Family Health Ctrs., Inc., 323 F.Supp.2d 681, 690 (D.S.C.2003); Mentch v. E. Sav. Bank, FSB, 949 F.Supp. 1236, 1247 (D.Md.1997). Accordingly, Defendants’ Motion is GRANTED as to Plaintiffs federal age discrimination claim. D. FMLA Interference Claim Plaintiff has also plead and argued that the Defendants interfered with his FMLA rights by 'terminating his employment'. To establish a claim for FMLA interference, an employee must prove that: (1) he was an eligible employee; (2) his employer was covered by the statute; (3) he was entitled to leave under the FMLA; (4) he gave his employer adequate rioticé of his intention to take leave; and (5) the employer denied him FMLA benefits to which he was. entitled. See Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d 508, 516, 523 (D.Md.2008). Plaintiff has only argued that Defendants interfered With his FMLA rights by terminating him and refusing to allow him to return to his prior position at the conclusion of his leave period. See [Doc. No. 19] at pp. 14 n.13,15 (Plaintiffs Response Brief). “The Fourth Circuit analyzes claims that an employer failed to restore an employee to his or her pre-FMLA position under the interference theory ....” Santorocco v. Chesapeake Holding Co., LLC, 2010 WL 2464972, at *4, 2010 U.S. Dist. LEXIS 58160, at *10 (D.Md.2010) (citing Yashenko v. Harrah’s N.C. Casino Co., 446 F.3d 541, 550-51 (4th Cir.2006)). An FMLA interference claim differs from an FMLA retaliation claim, in that “motive is largely irrelevant when analyzing an interference claim.” See Santorocco, 2010 WL 2464972," }, { "docid": "6280700", "title": "", "text": "therefore, to delay starting her FMLA leave until the birth. Regulations promulgated under FMLA provide, “Interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b) (internal quotes omitted). Interpreting “discouraging” within the meaning of the regulation, Plaintiff cites Shtab v. Greate Bay Hotel and Casino, Inc., 173 F.Supp.2d 255 (D.N.J.2001), for the proposition that employer actions that cause an employee to delay the assertion of FMLA rights is actionable as an FMLA interference claim. However, courts in the Second Circuit require a Plaintiff who asserts a FMLA interference claim on a “discouragement theory” to offer evidence that she tried to assert her FMLA rights and was thereafter discouraged from taking FMLA leave, unless the employer’s purported acts of discouragement would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise his or her FMLA rights. See Golden v. New York City Dept. of Environmental Protection, 2007 WL 4258241 (S.D.N.Y. Dec. 03, 2007). Although the plaintiff need not have given formal notice that she would be tak ing leave, a plaintiff must objectively assert his or her FMLA rights before she can prevail on an “interference by discouragement” theory. See Avila-Blum v. Casa de Cambio Delgado, Inc., 519 F.Supp.2d 423, 429 (S.D.N.Y.2007). The plaintiff in Golden suffered from a chronic medical condition. He alleged that demeaning comments about his condition made by his supervisor discouraged him from asserting his FMLA rights, because he believed his supervisor would deny any requests for leave. Id. at *2-3. However, the plaintiff did not request leave for the dates at issue, and the court granted defendant’s motion for summary judgment. It held, inter alia, that the comments made by plaintiffs supervisor did not interfere with the plaintiffs FMLA rights because the plaintiff did not demonstrate that his supervisor’s comments “would have deterred an employee of ordinary firmness, in a situation similar to his, from requesting or taking FMLA leave.” The court further ruled that plaintiffs request for leave could have been" }, { "docid": "12027438", "title": "", "text": "granted judgment in its favor because no evidence suggested that Dotson applied for FMLA leave or exercised his FMLA rights. The company argues that it could not have intended to retaliate against Dotson for using his FMLA rights when he did not actually exercise those rights. In addition to providing a substantive (or “prescriptive”) right to unpaid leave in certain situations, the FMLA also provides proscriptive rights “that protect employees from discrimination or retaliation for exercising their substantive rights under the FMLA.” Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 546 (4th Cir.2006) (citing Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir.1998)). Section 2615 of the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). While the FMLA does not specifically forbid discharging an employee in retaliation for his use of FMLA leave, 29 C.F.R. § 825.220(c) states that employers are “prohibited from discriminating against employees or prospective employees who have used FMLA leave” and that “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, pro- motions, or disciplinary actions.” Courts have recognized that the FMLA provides a cause of action for retaliation. Blankenship v. Buchanan Gen. Hosp., 140 F.Supp.2d 668, 671-72 (W.D.Va.2001). Relying principally on a case from the Eleventh Circuit, Strickland v. Water Works & Seiver Bd., 239 F.3d 1199 (11th Cir.2001), Pfizer argues that for Dotson to establish unlawful retaliation under the FMLA, he must show that Pfizer had notice that he was specifically invoking an FMLA right. Simply asserting that an employer had notice of an employee’s need for leave for an FMLA-related reason, Pfizer suggests, cannot open the employer to FMLA retaliation liability. Case law and federal regulations make it clear, however, that employees do not need to invoke the FMLA in order to benefit from its protections. The regulations do not require the employee to “expressly assert rights under the FMLA or even mention the FMLA”; instead, the employee" }, { "docid": "22566888", "title": "", "text": "Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006) (citation and internal quotation marks omitted). In contrast to the interference theory, “[t]he employer’s motive is relevant because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.” Id. Generally, “a plaintiff ha[s] not waived a claim based on the interference theory where the complaint alleged general violations of 29 U.S.C. § 2615 that could apply to both interference and retaliation claims.” Morris v. Family Dollar Stores of Ohio, Inc., 320 Fed.Appx. 330, 335 (6th Cir.2009) (citing Wysong, 503 F.3d at 446). However, the essence of Seeger’s claim is retaliation, not interference with his substantive FMLA rights. In analogous circumstances, the Eighth Circuit Court of Appeals has convincingly rejected the same argument made by Seeger. In Stall-ings v. Hussmann Corp., 447 F.3d 1041 (8th Cir.2006), the employer terminated the plaintiff (Stallings) for “calling in FMLA [leave] for non-FMLA reasons, fraudulent ... misuse of the leave of absence policy, ... and causing falsification of the company’s records in this regard.” Id. at 1045. Stallings filed an action alleging, inter alia, both FMLA interference and retaliation claims, but the district court granted summary judgment in favor of the employer. Id. On appeal, Stallings argued that the district court improperly consolidated his FMLA claims and considered them as one for retaliation under § 2615(a)(2). Id. at 1050. The Eighth Circuit disagreed, stating: In the present case, we conclude that the district court did not improperly analyze Stalling’s FMLA claim as one of retaliation instead of interference. First, [the defendant corporation] granted every request Stallings made to take FMLA leave; therefore, Stallings has failed to establish that [the defendant corporation and the defendant manager] denied him a benefit to which he was entitled because he received all of the FMLA leave he requested.... Second, neither [defendant] ever impeded Stall-ings’ use of FMLA leave. Third, only after Stallings returned from FMLA leave did [the defendant corporation] question whether Stallings fraudulently used his FMLA leave and fire Stallings. Therefore, Stalling’s claim is fundamentally a claim for" }, { "docid": "12027437", "title": "", "text": "could take his adoption-related leave intermittently. Dotson kept his supervisors informed about his need for adoption-related absences, which included two separate trips to Russia. No one at Pfizer suggested he could not take either trip. Dotson also contacted Pfizer’s employee benefits contractor with questions related to his planned adoption. During the trial, he offered evidence that a Pfizer HR official misinformed him about available FMLA benefits, after which he did not seek to designate any of his time off as FMLA-protected. The jury, then, heard evidence from which it could reasonably infer that Pfizer either granted Dotson’s requests for intermittent adoption-related leave or failed to properly inquire concerning the designation of leave. If Dotson was improperly dissuaded from pursuing his FMLA options, he could not have come to an agreement on a more formal intermittent leave schedule. In either case, Pfizer cannot now claim that it did not “agree” to allow Dotson to take the intermittent pre-adoption leave he requested and took. 2. Request for FMLA Leave Pfizer submits that the district court should have granted judgment in its favor because no evidence suggested that Dotson applied for FMLA leave or exercised his FMLA rights. The company argues that it could not have intended to retaliate against Dotson for using his FMLA rights when he did not actually exercise those rights. In addition to providing a substantive (or “prescriptive”) right to unpaid leave in certain situations, the FMLA also provides proscriptive rights “that protect employees from discrimination or retaliation for exercising their substantive rights under the FMLA.” Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 546 (4th Cir.2006) (citing Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir.1998)). Section 2615 of the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). While the FMLA does not specifically forbid discharging an employee in retaliation for his use of FMLA leave, 29 C.F.R. § 825.220(c) states that employers are “prohibited from discriminating against employees or prospective employees" }, { "docid": "10592684", "title": "", "text": "limited to, subjecting Plaintiff to procedures not authorized by the FMLA, failing to timely renew Plaintiffs intermittent medical leave status, taking Plaintiffs use of protected leave in placing her on a corrective action plan in or about June of 2009, by terminating Plaintiffs employment, and discouraging Plaintiff from taking future medical leave. Third Am. Compl. at ¶¶ 63-64. Plaintiff alleges the following with respect to that portion of her claim for wrongful discharge related to taking and/or requesting FMLA leave: At all materials times, the public policy of the State of Oregon was to prohibit an employer from ... interfering with, and discriminating against employees who inquire about and/or attempt to utilize the provisions of OFLA and/or FMLA. Defendants, through their agents and/or employees, violated these public policies by ... interfering with, retaliating, and discriminating against Plaintiff for inquiring about and/or utilizing the provisions of OFLA and/or FMLA. Defendants violated the above public policies in terminating Plaintiff. The discharge was unlawful and in violation of the public policy of the State of Oregon. Defendants’ discharge of Plaintiff was in retaliation for Plaintiffs pursuit and exercise of Plaintiffs rights related to Plaintiffs role as an employee, including the right to protected medical leave without fear of retaliation, which rights are of important public interest. Third Am. Compl. at ¶¶ 99-101. In her Supplemental Statement Plaintiff limits her FMLA and OFLA claims and that portion of Plaintiffs wrongful-discharge claim based on FMLA and OLFA to the fact that she received a Level II Corrective Action two weeks after returning from medical leave in 2009 and was terminated three weeks after renewing her request for intermittent FMLA leave in 2010. A. The Law. 1. FMLA When a plaintiff alleges retaliation for exercising her rights under FMLA, the Ninth Circuit has held such a claim is properly analyzed as an interference claim pursuant to 29 U.S.C. § 2615(a). See Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir.2003) (“[T]he statutory and regulatory language of FMLA makes clear that where an employee is subjected to negative consequences simply because he has used FMLA leave," }, { "docid": "14144726", "title": "", "text": "request for FMLA leave. (SAC ¶ 38.) This pleads a technical FMLA violation, because “[w]hen an employee requests FMLA leave ... the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.” 29 C.F.R. § 825.300(b)(1). However, Plaintiff has not alleged the specific harm caused by the delay, such as whether he did not take FMLA days because he was waiting for approval. Indeed, the Second Amended Complaint indicates that Plaintiff continued to take days off and designate them as FMLA leave even though his request had not been granted; therefore, Plaintiff has not alleged that the delay caused him harm beyond the injury caused by the eventual denial of his request. Plaintiff also asserts that his supervisor harassed him by slamming down the telephone whenever he called in FMLA leave. (SAC ¶ 11.) Discouraging an employee from using FMLA leave could violate the employee’s FMLA rights. See 29 C.F.R. § 825.220(b). And, while the harassment alleged by Plaintiff could be construed as such discouragement, Plaintiff has not alleged that he did not take his FMLA leave as a result. Accordingly, except for the deficient pleadings of the hours-worked require ment and Defendant DOC’s status as a covered FMLA employer, Plaintiff has stated a claim for FMLA interference sufficient to survive a motion to dismiss. Thus, Defendants’ motion to dismiss Plaintiffs FMLA interference claim is granted in part, but Plaintiff is allowed leave to amend his complaint to cure any deficiencies, and to the extent applicable, may add greater specificity as indicated with respect to the dates on which he requested and used FMLA leave, and the dates on which some of the alleged acts of interference occurred. S. FMLA Retaliation Claim In an FMLA retaliation claim, “an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.” Krosmico, 2006 WL 3050869, at *2. To state a claim for retaliation under the FMLA, Plaintiff must allege that: “1) he exercised rights protected under the FMLA; 2) he was qualified for his position; 3)" } ]

[ { "docid": "12419715", "title": "", "text": "wbat he did and what the results were, cannot be accepted as proof of reduction to practice, unless fully corroborated, even, though such reports were made to an official who had such confidence in their accuracy that he was willing to act upon them without complete and independent investigation. While they constitute good evidence of conception, they are self-serving on the question of reduction to practice. [Citing cases.] In the case of Petrie v. De Schweinitz, 19 App. D. C. 386, cited in the above case, the Court of Appeals for the District of Columbia stated : * * * The evidence of self-serving declarations concerning an invention, whilst admissible as disclosures tending to establish the fact of conception, are clearly incompetent to prove the independent fact of reduction of that conception to practice. For the reasons hereinbefore stated, we must agree with the Board of Appeals that the evidence relied upon by appellant for corroboration of his testimony respecting actual reduction to practice in 1982 does not justify a holding that;the tests made by appellant were satisfactory. Appellant next makes the-contention that the publication of his invention in the December 1, 1932, -issue of the Air Commerce Bulletin was a constructive reduction to-»practice of the invention.. In support of this contention he cites the case of Marconi v. Shoemaker, 1907 C. D. 392, wherein the then' Commissioner of Patents, after citing certain publications disclosing the invention there involved, stated: Under section 4886 of the Revised Statxites the disclosure of an invention in any prior printed publication in this or in . any foreign country is an absolute bar to the granting of a patent to one who subsequently makes that invention. It is well settled, however, that in order to constitute such a bar the earlier printed and published description.-must exhibit the invention in such full and intelligible manner as to enable 'persons skilled in the art to which the invention relates to understand the operation of the invention and to carry it into practical use. [Citing eases.] -When, therefore, a publication is sufficient to constitute a bar against" } ]

[ { "docid": "22141269", "title": "", "text": "court produced the reported opinion, findings, and conclusions, which use nearly verbatim Monoclonal’s pre-trial brief and pre-trial proposed findings of fact and conclusions of law, in three days, in support of the judgment now on appeal. The district court held that the claimed subject matter of the ’110 patent was neither conceived nor actually reduced to practice before May 1980, and was anticipated under § 102(g) by the actual reduction to practice of the invention by Drs. Uotila and Ruoslahti at the La Jolla Cancer Research Foundation (UCRF) as early as November of 1979 and by the actual reduction to practice of the invention by Drs. Oi and Herzenberg (Oi/Herzenberg work) at the Stanford University Laboratory as early as July 1978, later published in December of 1979. The district court also held the claims of the ’110 patent invalid for obviousness from the Oi/Herzenberg work in view of (1) a February 1979 article by M.E. Frankel and W. Gerhard (Frankel article) which discloses high-affinity monoclonal antibodies, and apparently in view of numerous other references including; (2) the work of Nobel Prize winners G. Kohler and C. Milstein disclosing a Nobel Prize-worthy method for producing monoclonal antibodies in vitro (outside the body) published in an August 7, 1975, article; (3) U.S. Patent No. 4,244,-940 issued to Jeong et al. disclosing a simultaneous polyclonal assay (Jeong), U.S. Patent No. 4,098,876 to Piasio et al. disclosing a reverse polyclonal sandwich assay (Piasio), U.S. Patent No. 4,016,143 to Schurrs et al. disclosing a forward poly-clonal sandwich assay (Schurrs); (4) a July 1979 publication by A.C. Cuello et al. disclosing the use of monoclonal antibodies in competitive assays; and (5) eight articles dated between January 1979 and March 6, 1980, “predicting” that monoclonal antibodies would be used in future immunoassays. The district court also invalidated the patent on various grounds based on 35 U.S.C. § 112, first and second paragraphs, as hereinafter discussed. A. The References 1. Kohler and Milstein’s Nobel PrizeWinning Work: Producing Monoclonal Antibodies In Vitro For the First Time In early immunoassay work, polyclonal antibodies produced in vivo (in the body) in" }, { "docid": "16053288", "title": "", "text": "to the nature of the case and facts supporting it. As showing the views of the courts in this and other jurisdictions, reference may be had to McLeod Tire Corporation v. B. F. Goodrich Co. (D. C.) 268 F. 205, wherein Judge A. N. Hand, of the Southern district of New York, said: “It has been the practice in this district to attempt to simplify the issues and limit the testimony necessary at the trial by allowing inspection and compelling answer to interrogatories in patent eases very liberally. We have stopped little short of requiring almost everything except the names of witnesses and such information as would enable the interrogator to bring forward untruthful\" testimony to meet the evidence of his adversary. Dick v. Underwood (D. C.) 235 F. 300.” In A. B. Dick Co. v. Underwood Typewriter Co. (D. C.) 235 F. 300, Judge Mayer, in the Southern district of New York, granted a motion for particulars requiring the defendant to specify the patents and publications to be offered in evidence at the trial; what instances of prior use or knowledge the defendant would attempt to prove at the trial; approximately when, where, and with whose knowledge the prior use or invention occurred, the description of the thing invented or used, and whether the article alleged to have been made, or used, or invented, prior to the invention, was in existence and available for inspection by the complainant. But plaintiff was required simultaneously to serve on the defendant a statement of the dates, approximately, of invention as claimed by the plaintiff. It seems to be almost a universal practice to order the defendant, who has pleaded in anticipation a number of patents or publications, or has alleged numerous instances of prior knowledge and use, to specify what patents, publications, or instances of prior use he will rely upon at the trial, providing that plaintiff is at the same time disclosing to the defendant the dates of the conception and reduction to practice of the invention of the patent in suit. I am of the opinion that the cases at" }, { "docid": "5362820", "title": "", "text": "in the answering brief for Weber et al., “to the effect that if the court finds the Weber et al. application disclosure to be adequate, it should also find that Mr. Benkelman had knowledge of Jira’s invention sufficient for corroboration.” That argument seems to us to present a non sequitur, and we agree with the statement in the brief for Weber et al. that “there is no connection between the completeness of the Weber et al. disclosure and the question of fact concerning Mr. Benkelman’s knowledge of Jira’s invention prior to June 14, 1944.” The court would not be justified, particularly in view of the undisputed testimony of Jira’s witness Johnson, referred to in the excerpt from the board’s decision quoted supra, in holding that the board erred in its finding of sufficient disclosure in the parent application of Weber et al. This brings us to the consideration of the first allegation epitomized in the brief for Jira from the numerous assignments of error embraced in his reasons of appeal to us, which, for convenience, we here repeat: “1. Jira contends that he has shown ample corroboration of a proper conception, diligence to a reduction to practice, and actual sale of merchandise made according to the counts in issue, all prior to the Weber et al. filing date. The Board has held that there is not proper corroboration.” It should be understood that Weber et al. introduced no testimony and so are restricted to the filing date of their patent application for conception and reduction to practice, that date being June 14, 1944. No preliminary statement was filed on their behalf. In Jira’s preliminary statement 'he alleged : “ * * * that on or about the 16th day of March, 1940, he first made a written description of the invention; that on or about the 16th day of March, 1940, he first disclosed his invention to others; that on or about January 11, 1940, he received from the Harshal Chemical Company of Cleveland, Ohio the specific ingredients for constructing his invention; that on or about March 16, 1940, he" }, { "docid": "18911878", "title": "", "text": "503. In the case of De Kando v. Armstrong, supra, the court said: * * * Any knowledge or use of the invention by appellant abroad, in the absence of a patent or description in a printed publication prior to appellee’s date of invention or discovery, cannot deprive appellee of his right to a patent. Rev. Stat. sec. 4923, U. S. Comp. Stat. 1901, p. 3396. All that appellant diet abroad was a nullity in so< far as it affected the right of appellee. If, therefore, appellee’s right is to be destroyed, it must be because .of the knowledge imparted to Waterman, which, however complete, amounts to nothing more than proof of conception and disclosure, since all considei-ation of what appellant did in Europe must be eliminated. The device embodied in appellant’s invention had not been constructed in this country at the time appellee filed his application and constructively reduced his invention to practice. (Italics ours.) The cáse of Westinghouse Mach. Co. et al. v. General Electric Co. et al., supra, involved the same question as was involved in the case of De Kando v. Armstrong, supra, the Westinghouse and General Electric companies being the assignees of De Kando and Armstrong, respectively. The Westinghouse case was an action in equity begun in the United States District Court, N. D., of New York, under K. S. 4915. The Circuit Court of Appeals in that case expressly approved the holding of the Court of Appeals of the District of Columbia in the De Kando case, that reduction to practice of an invention abroad could not be considered in a contest between rival inventors in the United States. In the case of Lorimer v. Erickson, supra, the court said: We agree with the tribunals of the Patent Office that Lorimer was the first to conceive, and also that his reduction to practice in Prance cannot be taken advantage of in this country as the actual reduction to practice. DeKando v. Armstrong, 37 App. D. C. 314-321. The case of Bell v. Brooks, 19 O. G. 290, C. D. 1881, 4,. was an interference" }, { "docid": "6270639", "title": "", "text": "Office relied upon the same as prior knowledge as of its received date. The Court, at page 305 of the aforementioned citation stated that “ * * * the basic question here is whether the Nystrom article, regardless of the date received, constitutes sufficient evidence of prior knowledge or use of the claimed invention by others in this country within the meaning of 35 U.S.C. § 102(a).” Furthermore, the Court, at page 308 of the opinion, goes on to say that “ * * * the mere placing of a manuscript in the hands of a publisher does not necessarily make it available to the public within the meaning of said authorities.” The fact that the Summary Report, Part III, was a report sent to an agency of the United States Government and the scientific article in Schlittler was sent to a publisher is of no legal significance. It is merely a distinction without a difference. I, therefore, hold that the Battelle Summary Report, Part III, not having been publicly Imown prior to Vordahl’s filing date, is ineffective as evidence of prior knowledge. The Jaffee Patent This case has a unique phase in that the Court has the benefit of the tes timony of Dr. Robert I. Jaffee, the holder of patent 2,588,007. The Jaffee patent discloses alloys of titanium with 0.5 to 2.5% chromium and 2.5 to 7.5% molybdenum as the only alloying elements. The patent also discloses that these alloys may be rolled at about 750°C. to 900°C. From Figure 1 of Jaffee it is seen that the maximum ultimate strength obtained was 129,000 psi, with accompanying elongations ranging, as depicted in Figure 2, from 12 to 21%. Nowhere is there any reference in Jaffee to the microstructure of his alloys, nor to any of the concepts on which the Vordahl application is based, such as, the alloying with titanium of one or more of the beta promoting elements of the group chromium, molybdenum, manganese and iron, within the critical range of 2-15 atomic percent, and of subjecting the resulting alloys to working in the two phase temperature" }, { "docid": "11876928", "title": "", "text": "made known to his patent lawyer in October of 1967. OPINION The record before us supports the board’s finding that appellant’s invention was reduced to practice and, further, that this occurred in November, 1965. The sole remaining question is whether the board correctly held that junior party-appellant suppressed or concealed his invention within the meaning of 35 U.S.C. § 102(g). Here, senior party-appellee bears the burden of proof by a preponderance of the evidence, notwithstanding junior party-appellant’s burden on the issue of priority of invention which he has sustained. Gallagher v. Smith, 206 F.2d 939, 41 CCPA 734 (1953). In considering the question, we point out that section 102(g) is concerned with the subject of priority of invention and, for interference purposes, provides that a person shall be entitled to a patent unless “before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it.” By its enactment as part of the Patent Act of 1952, Congress codified the body of law which had accumulated on the subject of priority of invention, including the legal concept of “suppression or concealment.” We note that commencing with the first edition of Webster’s dictionary in 1828 and continuing to the present the definition of “suppress” has included the idea of keeping from public knowledge. It is to be expected, of course, that the courts would be aware of the definition, which fits very well with their statements on the clear policy against suppression underlying our interference laws, both prior to and including 35 U. S.C. § 102(g). Long ago this policy was explained by the U.S. Supreme Court in Kendall v. Winsor, 62 U.S. (21 How.) 322, 328, 16 L.Ed. 165 (1858) as follows: The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: “to promote the progress of science and the useful arts,” contemplating and necessarily implying their extension, and increasing adaptation to the uses of society. ... By correct induction from these truths," }, { "docid": "6270638", "title": "", "text": "F. 480, 485. In its Report accompanying the Patent Act of 1952 the House Committee on the Judiciary stated: “Subsection (a) is the language of the existing law, recognizing that the interpretation by the courts excludes various kinds of private knowledge not known to the public.” (House Report No. 1923, p. 6, May 12, 1952 U. S. Code Congressional and Administrative News, 1952, p. 2399, 82d. Congress, 2d. Session.) In re Schlittler, 110 U.S.P.Q. 304, 308, the Court stated: “ * * * we are of the opinion that placing of the Nystrom article in the hands of the publishers did not constitute either prima facie or conclusive evidence of knowledge or use by others in this country of the invention disclosed by the article, within the meaning of Title 35, Sec. 102(a) of the United States Code * * * In the Schlittler case a scientific article was published in a technical periodical subsequent to applicant’s filing-date, but the publication stated that the article had been received prior to that filing date. The Patent Office relied upon the same as prior knowledge as of its received date. The Court, at page 305 of the aforementioned citation stated that “ * * * the basic question here is whether the Nystrom article, regardless of the date received, constitutes sufficient evidence of prior knowledge or use of the claimed invention by others in this country within the meaning of 35 U.S.C. § 102(a).” Furthermore, the Court, at page 308 of the opinion, goes on to say that “ * * * the mere placing of a manuscript in the hands of a publisher does not necessarily make it available to the public within the meaning of said authorities.” The fact that the Summary Report, Part III, was a report sent to an agency of the United States Government and the scientific article in Schlittler was sent to a publisher is of no legal significance. It is merely a distinction without a difference. I, therefore, hold that the Battelle Summary Report, Part III, not having been publicly Imown prior to Vordahl’s filing" }, { "docid": "18911877", "title": "", "text": "in the record to the contrary. The decision is affirmed as to this respect. Since Wilson and Dick cannot be accorded diligence over the critical period from December 1&28 until March 18, 1929, we must accordingly hold that they cannot prevail. Counsel for the respective parties agree that there is no direct precedent upon the question of whether diligence abroad by a foreign inventor in reducing his invention to practice (there having been no showing of diligence by him in the United States) may be considered to enable an award of priority to such foreign inventor who, while being the first to conceive the invention, was the last to reduce it to practice. It is well established that an actual reduction to practice abroad may not be considered in an interference proceeding involving a question of priority of invention. De Kando v. Armstrong, 31 App. D. C. 314; Westinghouse Mach. Co. et al. v. General Electric Co. et al. (Circuit Court of Appeals, Second Circuit), 207 Fed. 75; Lorimer v. Erickson, 44 App. D. C. 503. In the case of De Kando v. Armstrong, supra, the court said: * * * Any knowledge or use of the invention by appellant abroad, in the absence of a patent or description in a printed publication prior to appellee’s date of invention or discovery, cannot deprive appellee of his right to a patent. Rev. Stat. sec. 4923, U. S. Comp. Stat. 1901, p. 3396. All that appellant diet abroad was a nullity in so< far as it affected the right of appellee. If, therefore, appellee’s right is to be destroyed, it must be because .of the knowledge imparted to Waterman, which, however complete, amounts to nothing more than proof of conception and disclosure, since all considei-ation of what appellant did in Europe must be eliminated. The device embodied in appellant’s invention had not been constructed in this country at the time appellee filed his application and constructively reduced his invention to practice. (Italics ours.) The cáse of Westinghouse Mach. Co. et al. v. General Electric Co. et al., supra, involved the same question" }, { "docid": "4696607", "title": "", "text": "be, as is suggested in the answering brief for Weber et al., “to the effect that if the court finds the Weber et al. application disclosure to be adequate, it should also find that Mr. Benkelman had knowledge of Jira’s invention sufficient for corroboration.” That argument seems to us to present a non sequitur, and we agree with the statement in the brief for Weber et al. that “there is no connection between the completeness of the Weber et al. disclosure and the question of fact concerning Mr. Benkleman’s knowledge of Jira’s invention prior to June 14, 1944.” The court would not be justified, particularly in view of the undisputed testimony of Jira’s witness Johnson, referred to in the excerpt from the board’s decision quoted supra;, in holding that the board erred in its finding of sufficient disclosure in the parent application of Weber et al. This brings us to the consideration of the first allegation epitomized in the brief for Jira from the numerous assignments of error embraced in his reasons of appeal to us, which, for convenience, we here repeat: 1. Jira contends that lie has shown ample corroboration of a proper conception, diligence to a reduction to practice, and actual sale of merchandise made according to the counts in issue, all prior to the Weber et al. filing date. The Board has held that there is not proper corroboration. It should be understood that Weber et al. introduced no testimony and so are restricted to the filing date of their patent application for conception and reduction to practice, that date being June 14,1944. No preliminary statement was filed on their behalf. In Jira’s preliminary statement he alleged: * * * that on or about the 16th day of March 1940, he first made a written description of the invention; that on or about the 16th day of March 1940, he first disclosed his invention to others; that on or about January 11, 1940, he received from the Harshal Chemical Company of Cleveland, Ohio, the specific ingredients for constructing his invention; that on. or about March 16, 1940," }, { "docid": "11242797", "title": "", "text": "* * before the invention thereof by the applicant for patent, * * * . This court has set forth that the burden of proving the facts of a prior knowledge defense is on the defendant and every reasonable doubt must be resolved against him. Badowski v. United States, 143 Ct. Cl. 23, 164 F. Supp. 252, 118 U.S.P.Q. 358 (1958). In the instant case the defendant has met the burden with clear and convincing evidence of operable anticipatory devices which were accessible to the public prior to the Somers invention. The prior knowledge or use must be of a complete and operative device. Mere acquaintance with the invention is not enough if there is no reduction to practice. Badowski v. United States, supra; Block v. Nathan Anklet Support Company, Inc. 9 F. 2d 311 (2d Cir. 1925); Coffin v. Ogden, 85 U.S. (18 Wall.) 120 (1873). However, the mere fact that the device was made in a laboratory or the like is not a reason for classifying the work as an experiment as opposed to a reduction to practice as long as the device is made so as to have practical utility. Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. 358 (1928). Once a device is actually built satisfactorily for the intended purpose, it is more than an experiment and is a part of the prior art even if it is later abandoned. Buser, et al. v. Novelty Tufting Machine Co., 151 F. 478 (6th Cir. 1907). The #212, #220 D.C. and #220 A.C. relays were each completely constructed and tested sufficiently to demonstrate their utility as relays prior to the invention of the patentee, and thus each of these relays may be considered as properly reduced to practice at that time. The modified #212 relay, though reduced to a drawing prior to the invention of the patentee, was not completely constructed at that time due to problems in ob taining a proper material for the header. Thus, the modified #212 relay was not reduced to practice prior to the time of the patentee’s invention and may" }, { "docid": "23080242", "title": "", "text": "when disclosed are, however, susceptible to man-made duplication. Appellant in his brief points out: The description of a plant in a plant patent or in a printed publication at best can only recite, as historical facts, that at one time a certain plant existed, was discovered in a certain manner, and was asexually reproduced. This information may be interesting history, but cannot enable others to reproduce the plant. * * * Prior public use and sale of a plant are the avenues by which a plant enters the public domain. In the case of manufactured articles, processes and chemical compositions, a different situation prevails. Written descriptions and drawings in publications can often enable others to manufacture the article, practice the process or produce the chemical composition. Thus, with respect to publications in these fields, there is a valid basis in public policy for 35 U.S.C. 102(b) which bars the granting of patents on inventions “described in a printed publication in this or a foreign country * * * more than one year prior to the date of the application for patent in the United States.” The knowledge thus made available to the public must, if it is to anticipate an invention, be practical and complete. As stated in Sec. 227 of Robinson on Patents: It is to be remembered, however, that “knowledge,” in this sense, means such an acquaintance with the invention, on the part of the public, as renders it available to them as a practically operative means. If their knowledge is derived from use in this country, the use must be of such a kind as imparts this information. If it rests on any foreign or domestic patent or publication these must be sufficient to accomplish the same result. In neither of these cases must there be any necessity for the exercise of additional inventive skill, since with the employment of the creative faculties, in the adaptation of any invention to the public use, another obligation is incurred which can only be discharged by protecting that inventor in the exclusive use of the invention. Thus we arrive at" }, { "docid": "8934576", "title": "", "text": "obtained a patent on the amended claim l. \\ OPINION IV. VALIDITY OF THE ’129 PATENT Several sections of Title 35 U.S.C. are relevant to RMI’s challenge to the validity of the ’129 patent. Under 35 U.S.C. § 102(a), public knowledge or uses by others before Amrine’s invention date is prior art over which his claims must distinguish. Section 102(b) provides that irrespective of Amrine’s invention date, printed publications or public uses or sales more than one year before the application filing date are prior art. Section 102(f) requires that Am-rine himself be the inventor of the claimed subject matter. Section 102(g) contains rules regarding abandonment, concealment and suppression as well as conception and reduction to practice. Section 103 requires that the claimed invention be unobvious to one of ordinary skill who is presumed to have knowledge of all the relevant prior art. If RMI should successfully carry its burden under any one of these sections, the affected claims are invalid. A. Asserted prior art RMI contends that prior art references, not submitted to the United States Patent and Trademark Office (PTO), show lack of inventiveness and obviousness sufficient to defeat the ’129 patent. The references considered by the court include the works of Dr. Charles Bailey, Dr. Michael Chiechi, Dr. John Flege and Richard Berryessa, as well as a reference to an article co-au thored by Dr. Edward A. Fitch and Dr. Bailey. 1. Dr. Charles Bailey Dr. Charles Bailey, an eminent clinical professor of and pioneer in cardiac surgery, testified that in 1959 he abandoned the dual cannulation technique that required two cannulae, and began using a single catheter venous drainage procedure. That same year, Dr. Bailey and one of his students, Dr. Blanco, contributed to an article entitled, “Single Catheter Gravity Drainage of the Right Atrium or Right Ventricle During Total Cardiac Bypass.” Although the article does not specifically mention drainage from the IVC, RMI asserts the publication teaches insertion of a single-diameter catheter with several drainage openings through the right atrial appendage in a manner that facilitates drainage from the coronary sinus as well as the" }, { "docid": "10615704", "title": "", "text": "before the effective filing date” of patent was not prior art). “Prior art refers to all published articles, known techniques, and marketed products.” Robert P. Merges et al., Intellectual Property in the New Technology Age, 131 (2d ed. 2000); see also 35 U.S.C. § 102(a)(1) (party is entitled to seek patent protection unless claimed invention was “described in a printed publication ... or otherwise available to the public before the effective filing date of the claimed invention”). It is well-settled that a “contribution of information in the prior art cannot give rise to joint inventorship because it is not a contribution to conception.” Eli Lilly, 376 F.3d at 1362; see also Gen. Elec. Co. v. Wilkins, 750 F.3d 1324, 1331-32 (Fed.Cir.2014) (rejecting joint inventorship claim since “if all [putative inventor] allegedly contributed to the ... patent was the idea to use [certain instrumentality], then he would have contributed nothing -beyond what was already known in the art”). Here, once the minireview went to press, Bass’s Dicer research was “assimilated into the storehouse of knowledge that comprises ordinary skill in the art.” Falana v. Kent State Univ., 669 F.3d 1349, 1358 (Fed.Cir.2012). For this reason, even if Tuschl relied on Bass’s published hypothesis in researching RNA and appropriated it into his patent claim, this appropriation of published prior art did not, without more, amount to collaboration. See, e.g., Sewall v. Walters, 21 F.3d 411, 416 (Fed.Cir.1995) (no joint inventorship where named inventor built off of method already disclosed by would-be joint inventor in prior art patent); Eli Lilly, 376 F.2d at 1362 (no joint inventorship where putative inventor “contributed only a mere realization about the chemical properties of [a drug] that were in the public domain”). Consistent with this case law, Bass later testified it would not “ever have crossed [her] mind to say” that she was not being properly credited as the discoverer of 3’ overhangs in regard to the Tuschl II article. Bass Depo. at 102:19-25. Accordingly, UUtah’s argument boils down to an allegation that, during the three weeks between his receipt of the preprint and its publication, Tuschl" }, { "docid": "17347887", "title": "", "text": "of the prior art relied upon by defendant taken alone or in combination, anticipates the invention of the Heiland patent claims relied on in this suit by the plaintiff. Defendant selected certain work on a “magnetograph,” carried on in 1943 for the United States Government by the Department of Terrestrial Magnetism (DTM) of the Carnegie Institute of Washington, as its best non-patented reference against the Heiland patent. This work is relied on by defendant solely as a statutory bar (35 U.S.C. § 102(a) ) on the ground the invention of the Heiland patent “ * * * was known or used by others in this country * * * before the invention thereof * * The trial court held the DTM work was not proof of prior knowledge or use by others on two grounds, 1) the DTM work was classified as “restricted” and was not publicly available, and 2) that all the DTM work was later than the established date of invention to be accorded Heiland. We approve the trial court’s findings and conclusions on both grounds. Defendant admits in its brief that the DTM work does not constitute a direct and full anticipation of all of the claims in issue. However, there can be no doubt that the trial court did consider the identical combination of the DTM work and the Oswald et al. Patent No. 2,030,760 suggested by defendant as the answer to the Heiland invention. The statute uses the words “known or used.” This implies that the knowledge and use must be accessible to the public. Block v. Nathan Anklet Support Co., 2 Cir., 9 F.2d 311; Gillman v. Stern, 2 Cir., 114 F.2d 28, cert. den. 311 U.S. 718, 61 S.Ct. 441, 85 L.Ed. 468. In the latter case, Judge Learned Hand for the Court, explained the distinction between secret knowledge or use and public knowledge or use. This Court has often applied the well-established rule of law that a novel combination of elements, whether all new, or all old, or partly new and partly old, which so cooperate as to produce a new and" }, { "docid": "2496129", "title": "", "text": "However, the precise focus of the analysis is not whether the foreign sales are themselves § 102(b) prior art, but whether the publication has placed the claimed invention in the possession of the public before the critical date. Thus, foreign sales of the claimed plants may be within the knowledge of the skilled artisan and may be considered to provide the public with access to Appellants’ inventions. We disagree with Appellants that our holding conflicts with LeGrice. In that case, the Board had affirmed rejections of plant patent applications based on catalogs depicting the claimed plants. Specifically, the Board stated that a reference did not have to be enabled to anticipate a claim. In its decision reversing the Board, the Court of Customs and Patent Appeals discussed at length its view that § 102(b) applies to plant patents in the same way that it applies to utility patents, but acknowledged the distinction between plants and other patentable subject matter. 301 F.2d at 935. The court considered that the textual description of manufactured articles, processes, and even chemical compositions can often enable others to practice the invention; however, the mere description of a plant in a catalog may do little to enable one of skill in the art to recreate that claimed plant. Id. The court concluded that Congress had not indicated that § 102(b) should be applied differently to plant patents than to other inventions, and the court reiterated that “the clause ‘described in a printed publication’ has been interpreted with respect to whether the publication has in fact conveyed such knowledge of an invention to the public as to put the public in possession of the invention.” Id. at 936. Thus, the court held that it is sound law, consistent with the public policy underlying our patent law, that before any publication can amount to a statutory bar to the grant of a patent, its disclosure must be such that a skilled artisan could take its teachings in combination with his own knowledge of the pariicular art and be in possession of the invention. Id. Accordingly, the court reversed" }, { "docid": "10615703", "title": "", "text": "built upon it in his own work. The defendants respond that the Tuschl II inventors were free to use Bass’s research once it entered the public domain via the minireview’s publication in Cell magazine. In turn, UUtah concedes that the Tuschl II inventors were entitled to use Bass’s conception once published, but argues that “use of concepts in the public domain does not include their appropriation into a patent that removes them from the public domain.” Docket No. 194, Pis. Surreply at 19. The defendants finally retort that UU-tah is, in essence, raising an issue of invalidity, not one of co-inventorship. The defendants ultimately prevail. Generally speaking, scientific articles become part of the prior art on the date of their publication. 2 Practitioner’s Manual of Patent Examining Proc. § 2128.02 (“A journal article or other publication becomes available as prior art on the date ... it is received by a member of the public.”); Cytyc Corp. v. TriPath Imaging, Inc., 505 F.Supp.2d 199, 227 (D.Mass.2007) (technology not “documented in a published article nor publicly displayed before the effective filing date” of patent was not prior art). “Prior art refers to all published articles, known techniques, and marketed products.” Robert P. Merges et al., Intellectual Property in the New Technology Age, 131 (2d ed. 2000); see also 35 U.S.C. § 102(a)(1) (party is entitled to seek patent protection unless claimed invention was “described in a printed publication ... or otherwise available to the public before the effective filing date of the claimed invention”). It is well-settled that a “contribution of information in the prior art cannot give rise to joint inventorship because it is not a contribution to conception.” Eli Lilly, 376 F.3d at 1362; see also Gen. Elec. Co. v. Wilkins, 750 F.3d 1324, 1331-32 (Fed.Cir.2014) (rejecting joint inventorship claim since “if all [putative inventor] allegedly contributed to the ... patent was the idea to use [certain instrumentality], then he would have contributed nothing -beyond what was already known in the art”). Here, once the minireview went to press, Bass’s Dicer research was “assimilated into the storehouse of knowledge that" }, { "docid": "6270637", "title": "", "text": "1949. This is the date that the Patent Office relies upon as the date evidencing prior knowledge by others of Vordahl’s alleged invention described in Claims 29, 30 and 31. o The question, therefore, is this: Is the Report a valid reference against the aforementioned claims? Title 35 United States Code § 102 reads, in part, as follows “A person shall be entitled to a patent unless — (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent * * * ” The word “known” used in the statute means “publicly known.” See Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651; Gillman v. Stern, 2 Cir, 1940, 114 F.2d 28; Matheson v. Campbell, C.C, 69 F. 597, 604, reversed on other grounds, 2 Cir, 78 F. 910; Boyd v. Cherry, C.C., 50 F. 279, 283; Pyrene Mfg. Co. v. Boyce, 3 Cir, 292 F. 480, 485. In its Report accompanying the Patent Act of 1952 the House Committee on the Judiciary stated: “Subsection (a) is the language of the existing law, recognizing that the interpretation by the courts excludes various kinds of private knowledge not known to the public.” (House Report No. 1923, p. 6, May 12, 1952 U. S. Code Congressional and Administrative News, 1952, p. 2399, 82d. Congress, 2d. Session.) In re Schlittler, 110 U.S.P.Q. 304, 308, the Court stated: “ * * * we are of the opinion that placing of the Nystrom article in the hands of the publishers did not constitute either prima facie or conclusive evidence of knowledge or use by others in this country of the invention disclosed by the article, within the meaning of Title 35, Sec. 102(a) of the United States Code * * * In the Schlittler case a scientific article was published in a technical periodical subsequent to applicant’s filing-date, but the publication stated that the article had been received prior to that filing date. The Patent" }, { "docid": "23080267", "title": "", "text": "we find any support for the position taken by the Patent Office nor anything inconsistent with out position in the instant case. The Attwood case concerned use, as a reference, of a prior patent which was said by the appellant to cover an inoperative disclosure. The court based its decision on the Harden and Rentschler and Von Bramer cases. The Marden and Rentschler case cited the Cohn case and, erroneously interpreting that decision, merely stated on page 1121 that: Ductile thorium and the products produced therefrom and claimed in appellants’ application were clearly and adequately described in the references of record. Accordingly, in view of the decisions hereinbefore referred to, the question of the operativeness of the methods disclosed in the references is not involved in a determination of the issue of the patentability of the subject matter of the involved claims. The Von Bramer case also concerned a rejection based on a reference patent alleged to disclose an inoperative invention. The court held that “It is not necessary that a reference patent for a device or chemical compound disclose an operative process for reproducing the article or product.” Authority cited for this proposition was the Cohn, Marden Bifocal and other cases. Implicit in all of these cases is the concept of a certain degree of knowledge possessed by one skilled in the arts involved concerning the disclosure of the prior publication and the concept which was sought to be patented, to the end that this knowledge taken with the disclosure of the printed publications, was sufficient to place the disclosed invention in the possession of the public. To the extent, if any, that these decisions may conflict with this analysis of the Cohn case, we disagree with them and do not find them conclusive of the issue here. In the Michalek case, the court stated that skilled workers would, as a matter of course, be able to utilize the process disclosed by the reference to get results within the limits of the product claims of the application at bar. We think this fact situation is sufficient to distinguish this" }, { "docid": "9405251", "title": "", "text": "§ 282 attaches, and the burden of proof rests upon Continental Can to show prior knowledge or use under § 102(a) or prior public use or sale under § 102(b) of the invention by “clear and cogent evidence.” See, e. g., Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. 358, 382-383, 48 S.Ct. 380, 72 L.Ed. 610 (1928); Devex Corp. v. General Motors Corp., 321 F.2d 234, 238 (7th Cir.1963). Similarly, the burden is upon Continental Can in asserting anticipation on the basis of prior art patents and publications to sustain this claim by clear and convincing evidence. A patent or publication “is to be measured as anticipatory, not by what might be made out of it, but by what it clearly and definitely discloses.” McCullough Tool Co. v. Well Surveys, Inc., supra, 343 F.2d at 398. Furthermore, “a prior patent or other publication to be an anticipation must bear within its four corners adequate directions for the practice of the patent invalidated.” Dewey & Almy Chemical Co. v. Mimex Co., 124 F.2d 986, 989 (2d Cir.1942). In particular, Continental Can asserts that various developments, experiments and uses of plastic containers by its own engineers and employees in 1956 and 1957, prior to the alleged Edwards’ conception date in August 1957, and “involving extensive development and use of stacking rings with Z configuration,” completely invalidate the claims of the '213 patent. These activities, according to Continental Can, amounted to knowledge or use of the ’213 invention by its engineers and employees in this country before Edwards’ date of invention, within the meaning of § 102(a). ITW counters this argument with the assertion that these developments were incomplete or abandoned experiments, and thus were not anticipations under § 102(a). ITW further asserts that in any event none of these developments embodied the exact Edwards’ invention and therefore were not anticipations or prior art. Section 102(a) deals with knowledge or use of the invention by others prior to the date of invention by the applicant for patent. “Invention” is normally defined as consisting of conception plus reduction to practice of" }, { "docid": "20104150", "title": "", "text": "Under such circumstances, it is well settled that the disclosure of the Coakwell patent constitutes prior art against appellant, and that no claim can be allowed to appellant which does not present a patentable distinction over such disclosure. In re Bicknell et al., 30 C. C. P. A. (Patents) 1250, 136 F. 2d 1016, 58 USPQ 553; In re Boileau, 35 C. C. P. A. (Patents) 1248, 168 F. 2d 753, 78 USPQ 146; and In re Bronstein, 38 C. C. P. A. (Patents) 887, 187 F. 2d 637, 89 USPQ 66. We have carefully considered appellant’s arguments that the doctrine set forth in the cases just cited was modified by the Patent Act of 1952, particularly Sections 102 and 103 thereof, but we do not find them convincing. The pertinent portions of the sections in question read: Section 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless — (a) The invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the application for patent, or * * * * * * * (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or * * * * * * * (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. Section. 103. Conditions for patentability nonobvious subject matter A patent may not be obtained tbougb tbe invention is not identically disclosed or described as set forth in section 102 of this title, if tbe differences between" } ]

[ { "docid": "13432035", "title": "", "text": "order to permit the defendant to speak or present any information to mitigate the sentence.”); see also Green v. United States, 365 U.S. 301, 305, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (“[T]rial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior ' to sentencing.”); United States v. Eads, 480 F.2d 131, 133 (5th Cir.1973) (same). III. CONCLUSION Accordingly, we VACATE Clay’s sentence and REMAND for resentencing to allow Clay to allocute and to allow the district court to exercise its discretion under § 3553(a) to vary, if appropriate, from the advisory sentencing range calculated by application of the U.S. Sentencing Guidelines. We express no view on what sentencing decisions the district court should make on remand. VACATED and REMANDED. . Clay’s two qualifying offenses are strong armed robbery and sale of one-tenth of a gram of crack cocaine within 1,000 feet of a church. . Other circuits appear to agree. See, e.g., United States v. Corner, 598 F.3d 411, 416 (7th Cir.2010) (en banc) (\"[A] judge who understands what the [U.S. Sentencing] Commission recommends, and takes account of the multiple criteria in § 3553(a), may disagree with the Commission's recommendation categorically, as well as in a particular case. Because § 4B1.1 is just a Guideline, judges are ... free to disagree with it.... No judge is required to sentence-at variance with a Guideline, but eveiy judge is at liberty to do so.”); United States v. Michael, 576 F.3d 323, 327 (6th Cir.2009) (\"[T]he Supreme Court has consistently reaffirmed that all of the sentencing guidelines are advisory.... That holds true for the career-offender provisions just as it does any other provisions of the Guidelines.”); United States v. Boardman, 528 F.3d 86, 88 (1st Cir.2008) (remanding for the district court to \"consider [sentencing] issues with the additional latitude furnished by Kimbrough\"). . Because we find procedural error that was not harmless, we do not reach the issue of whether Clay's sentence is substantively unreasonable." } ]

[ { "docid": "16440869", "title": "", "text": "is the closest controlled substance to JWH-018 listed in the guidelines. The Drug Equivalency Tables list 1 gram of THC as equal to 167 grams of marihuana. See U.S.S.G. § 2D1.1, application note 8(D). 1. We make the same decision here as in Malone. Stanford points to testimony from Dr. Nicholas Cozzi contending that there is no scientific basis for the 1:167 ratio. Yet, that testimony is actually from Malone’s trial, so we are foreclosed from reevaluating it under our rule of orderliness. Notwithstanding expert testimony “that the 1:167 ratio has no scientific basis, this Court has squarely held that district courts are not required to engage in ‘a piece-by-piece analysis of the empirical grounding behind each part of the sentencing guidelines’ and ignore those parts that do not pass empirical muster.” Malone, 809 F.3d at 258 (quoting United States v. Duarte, 569 F.3d 528, 530 (5th Cir.2009)). Stanford’s second allegation of sentencing error also is foreclosed. 2. In a related argument, Stanford contends that the district court erred by failing to recognize its authority, conferred by Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), to vary from the 1:167 ratio for converting THC to marihuana. We also considered Kimbrough in Malone, 809 F.3d at 258-60, and determined that it was “unclear whether the district court properly understood its discretion under Kimbrough”-, nevertheless, we held that any error was harmless. The same statement from the district court regarding its authority to deviate from the guidelines calculation that we found ambiguous in Malone is at issue here, because the defendants in the conspiracy had a joint hearing on the matter. Thus, in regard to the ambiguity of the statement, we are bound by Malone. As in Malone, any error was harmless. In United States v. Groce, 784 F.3d 291 (5th Cir.2015), we explained that “[a]n erroneous guidelines range calculation is harmless if ‘(1) [ ] the district court would have imposed the same sentence had it not made the error,- and (2)[ ] it would have done so for the same reasons it gave at" }, { "docid": "23375822", "title": "", "text": "had received a prior version of his PSR four months earlier, when he was awaiting sentencing after pleading guilty. That PSR was identical to the operative PSR, save for adjustments to account for the withdrawal of his plea and the filing of the Government’s supplemental information. Cf. United States v. Burke, 187 F.3d 638 (6th Cir.1999) (unpublished table decision) (concluding that ten-day period to review revised PSR was reasonable, and violation of Rule 32’s thirty-five-day-review requirement harmless, when “changes contained in the Revised PSR were technical, not substantive”). Given these facts, Marrero has not shown that strict compliance with Rule 32(e)(2) would have resulted in a different sentence, and the district court’s violation of Rule 32(e)(2) amounted to harmless error. VII. Procedural Objection to Sentence Marrero also challenges his sentence, arguing that the district court failed to appreciate its authority “to disagree with the 100:1 craek[-to-powder-]co caine sentencing ratio[ ]” incorporated in the Guidelines. [Appellant’s Br. 23.] Marrero relies on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which held that a district court may vary a defendant’s sentence upon concluding that “the craek/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case,” id. at 110, 128 S.Ct. 558. See also Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009) (per curiam) (“[District courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”). Though Marrero was sentenced under the career-offender provisions of U.S.S.G. § 4B1.1 rather than the drug-quantity table of U.S.S.G. § 2D1.1, the sentencing disparity between crack and powder cocaine offenses is “implicitly incorporated” in his career-offender enhancement. United States v. Michael, 576 F.3d 323, 327 (6th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 819, 175 L.Ed.2d 574 (2009). Therefore, the logic of Kimbrough and Spears still applies, and a “categorical disagreement with the [erack-to-powdercocaine] ratio may ... support a district court’s rejection of the career offender enhancement.” United States v. Curb, 625 F.3d 968, 972 (6th" }, { "docid": "23081688", "title": "", "text": "based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.” United States v. Kimbrough, 174 Fed.Appx. 798, 799 (4th Cir.2006) (unpublished) (per curiam), rev’d, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). The Supreme Court held that a district judge “may determine ... that, in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objec tives of sentencing. In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.” Kimbrough, 552 U.S. at 91, 128 S.Ct. 558 (citation omitted). Thus, district courts are permitted to vary from the advisory guideline sentence calculated with the 100:1 ratio. Further confusion arose, however, as to whether Kimbrough contemplated variances from the 100:1 ratio only when the sentencing court, looking at the particular circumstances of the defendant and his offense under the rubric of § 3553(a), felt a variance was appropriate in the particular case before it, or whether sentencing courts could vary simply on the ground that the court believed, as a policy matter, that the 100:1 ratio creates unwarranted disparities among defendants. In Spears v. United States, — U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009), the Supreme Court clarified “the point of Kimbrough.” Id. at 843. The Court explained that Kimbrough represented “a recognition of district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Id. Thus, “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Spears, 129 S.Ct. at 843-44. District courts must, however, recognize that they have the authority to vary downward based on the crack/powder disparity: “The district court must at least recognize that it has the authority to vary downward based on the disparity [between powder and crack].” United States v. Anderson, 618 F.3d 873, 883 (8th Cir.2010) (citing Moore v. United States, 555 U.S. 1, 129 S.Ct. 4, 5," }, { "docid": "20912105", "title": "", "text": ". See id. . U.S.S.G. § 6A1.3(a). . United States v. Cabrera, 288 F.3d 163, 170 (5th Cir. 2002) (per curiam) (quoting United States v. Rogers, 1 F.3d 341, 343-44 (5th Cir. 1993)). . United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). . See United States v. Figueroa, 647 F.3d 466, 469 (2d Cir. 2011); United States v. Brey, 627 Fed.Appx. 775, 779 n. 4 (11th Cir. 2015); United States v. Lane, 616 Fed.Appx. 328, 329 (9th Cir. 2015); United States v. Beckley, 515 Fed.Appx. 373, 375 (6th Cir. 2013). . United States v. Burns, 526 F.3d 852, 859 (5th Cir. 2008). . United States v. Nava, 624 F.3d 226, 229 (5th Cir. 2010) (quoting United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006)). . Burns, 526 F.3d at 859. . As with lay testimony, \"[a] district court’s assessment of the relative credibility of opposing expert witnesses is entitled to deference.” Henderson v. Norfolk S. Corp., 55 F.3d 1066, 1069 (5th Cir. 1995). .Accordingly, unlike United States v. Hagman, this is not a case where \"the evidence appears to be equally balanced, or we cannot say upon which side it weighs heavier.” 740 F.3d 1044, 1052 (5th Cir. 2014). We also note that Hagman may no longer be good law in the wake of this Court’s decision in United States v. Vargas-Ocampo, which rejected the applicability of the “equipoise rule” in the related context of sufficiency of the evidence to support a conviction. See 747 F.3d 299, 301 (5th Cir. 2014) (en banc). . United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009). . United States v. Aguilar-Huerta, 576 F.3d 365, 368 (7th Cir. 2009). . United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011). . 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); see also Spears v. United States, 555 U.S. 261, 264, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam) (\"That was indeed the point of Kimbrough: a recognition of district courts' authority" }, { "docid": "20912107", "title": "", "text": "to vary from the crack cocaine Guidelines based on policy disagreement with them....\"). . United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008). . See Duarte, 569 F.3d at 530-31. . See, e.g., United States v. Clay, 787 F.3d 328, 332 (5th Cir. 2015); United States v. Garcia, 655 F.3d 426, 432-34 (5th Cir. 2011). . See also R.2350 (\"What you’re talking about there is the relativity of one conversion — as we all know, 2D 1.1(d) converts everything to marijuana. It's the coin of the realm.”). . See also R.2351 (\"[B]ut still in Kim-brough — and, here again, I invite contradiction — the conversion is between one equivalency to another equivalency and saying that that is the ratio that's unfair. It seems that the 1:167 is not that. That's going across the page and not up and down the page if you get what I’m saying.”). . Cf. Molina-Martinez v. United States, - U.S.-, 136 S.Ct. 1338, 1348, 194 L.Ed.2d 444 (2016) (\"Courts have ... developed mechanisms short of a full remand to determine whether a district court in fact would have imposed a different sentence absent the error.” (citing United States v. Currie, 739 F.3d 960, 967 (7th Cir. 2014))). . 450 F.3d 179, 182 (5th Cir. 2006). . Government's Brief at 65. . See United States v. Davis, 679 F.3d 190, 195-97 (4th Cir. 2012); United States v. Rublee, 655 F.3d 835, 839 (8th Cir. 2011); United States v. Grant, 636 F.3d 803, 817 (6th Cir. 2011) (en banc); United States v. Chapman, 532 F.3d 625, 629-30 (7th Cir. 2008); United States v. Casiano, 113 F.3d 420, 430 (3d Cir. 1997); United States v. Manella, 86 F.3d 201, 204-05 (11th Cir. 1996) (per curiam); United States v. Mariano, 983 F.2d 1150, 1155-57 (1st Cir. 1993); United States v. Mendoza-Haro, 595 Fed.Appx. 829, 833-34 (10th Cir. 2014) (collecting cases). Many of these cases concern reductions under Federal Rule of Criminal Procedure 35(b), not § 5K1.1, but this Court has held that “Rule 35(b) incorporates the standards set out in § 5K1.1.” United States v. Grant, 493" }, { "docid": "23381135", "title": "", "text": "matter of law that sentencing disparities caused by the existence of fast-track programs in some districts were not “unwarranted” under § 3553(a)(6), because such disparities were congressionally authorized. Martinez-Trujillo, 468 F.3d at 1268. We recognized that a district court must consider the entirety of the § 3553(a) factors, including factor (a)(6) regarding unwarranted sentence disparities, in imposing sentence, but opined that a disparity is not unwarranted where Congress specifically authorizes the disparity, such as the fast-track disparity in the PROTECT Act. Id.; accord United States v. Jarrillo-Luna, 478 F.3d 1226, 1231 (10th Cir.2007); United States v. Martinez-Macias, 472 F.3d 1216, 1219 (10th Cir.2007). Of course, Martinez-Trujillo and its progeny bind us “absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” United States v. Killion, 7 F.3d 927, 930 (10th Cir.1993). Defendant submits that Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), is that “superseding contrary decision.” In Kimbrough, a case addressing the disparity between guideline ranges for crack and powder cocaine offenses, the Supreme Court held that a district court had the discretion to vary from the recommended guideline range for a crack cocaine offense where the court determined such range was greater than necessary to achieve the sentencing objectives of § 3553(a). In other words, because the sentencing guidelines are advisory, district courts have the discretion to vary from those guidelines based on policy disagreements with them. In Spears v. United States, 555 U.S. 261, 265-66, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam), the Court made plain Kimbrough’s point; namely that regardless of individualized circumstances, “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on policy disagreements with those Guidelines.” At the time of Kimbrough, the applicable guideline provision treated one gram of crack cocaine as equivalent to 100 grams of powder cocaine. The Sentencing Commission developed this guideline by looking to the Anti-Drug Abuse Act of 1986 (“ADAA”), 100 Stat. 3207. The ADAA “treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine” by providing a" }, { "docid": "5851718", "title": "", "text": "general agreement. The prosecution acknowledges that, in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 572, 169 L.Ed.2d 481 (2007), the Supreme Court held that the Anti-Drug Abuse Act of 1986 “does not require ... sentencing courts ... to adhere to the 100-to-l ratio for crack cocaine quantities other than those that trigger the statutory-mandatory minimum sentences,” and then clarified in Spears v. United States, — U.S. -, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009) (per curiam), “that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Based on these decisions, the prosecution concedes that a district court has the discretion to impose a 1:1 crack-to-powder ratio at sentencing in a particular case, but contends that such a ratio may not be appropriate in every case. The prosecution points out that, in a pre-Spears decision, United States v. Cawthorn, 527 F.3d 678, 679-80 (8th Cir.2008), the Eighth Circuit Court of Appeals held that Kimbrough does not require the court to consider the erack/powder disparity when imposing sentence for a crack offense, only that the court errs if it fails to do so because it does not believe that it can. Defendant Gully, likewise, cites Kimbrough and Spears to support his position that there is no apparent reason why the court cannot employ a 1:1 ratio in a particular case to fashion a reasonable sentence, if the court rejects the 1:1 ratio based on a policy disagreement with the 100:1 ratio in the Sentencing Guidelines. He then points out that, in a pre-Kimbrough case, United States v. Pho, 433 F.3d 53 (1st Cir.2006), the First Circuit Court of Appeals recognized, “The decision to employ a 100:1 crack-to-powder ratio rather than a 20:1 ratio, a 5:1 ratio, or a 1:1 ratio is a policy judgment, pure and simple,” although he acknowledges that this statement was made in support of that court’s conclusion — -since abrogated by Kimbrough and Spears — that “the district court’s categorical rejection of the 100:1 ratio impermissibly usurps Congress’s judgment about the proper" }, { "docid": "22719270", "title": "", "text": "court made a dubious finding that Feemster successfully completed a one-year term of probation imposed in February 2004, given that Feemster was convicted in this federal case for distributing crack cocaine in March 2004. Cf. ante, at 463 n. 5. Nonetheless, the government did not object to the court's reliance on this finding, and under a plain error standard of review, I see no reasonable probability on the record as a whole that the district court would have selected a longer term of imprisonment without its observation about this term of probation. . Kimbrough v. United States, 552 U.S. 85, 128 S.Ct 558, 169 L.Ed.2d 481 (2007), and Spears v. United States, - U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam), also settled that district judges need give no weight to the crack cocaine guidelines, because they neither embody a policy decision directed by Congress, Kimbrough, 128 S.Ct. at 570-73, nor exemplify the Sentencing Commission's \"exercise of its characteristic institutional role” to formulate guidelines in light of \"empirical data and national experience.” Id. at 575 (internal quotation omitted). The Supreme Court has reserved decision on whether \"closer review” is warranted when a sentencing judge varies from guidelines other than the crack cocaine guidelines \"based solely on the judge’s view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case,” id. (internal quotation omitted), and that question is not directly presented in this case. . Early results after Gall and Kimbrough show that sentence disparities are aggravated further by policy disagreements among sentencing judges about what sentence best reflects the § 3553(a) factors in mine-run cases. For example, some district judges now agree with the advisory crack cocaine guidelines (which apply a crack-powder ratio ranging between 25-to-l and 80-to-l), and apply them under § 3553(a). See United States v. Haigler, No. 08-3165, 2009 WL 1228264, at *2 (10th Cir. May 6, 2009); United States v. Gibbons, 553 F.3d 40, 44 (1st Cir.2009). Other judges vary from the advisory guidelines based on a policy disagreement, and apply a crack-powder ratio of 20-to-l, see" }, { "docid": "22299386", "title": "", "text": "of his sentence, arguing that the district court should have granted a downward variance based on the sentencing disparity between crack and powder cocaine. “We review the reasonableness of a defendant’s sentence under a ‘deferential abuse-of-discretion standard,’ ensuring that the district court committed no significant procedural error and that the sentence is substantively reasonable.” United States v. Midkiff, 614 F.3d 431, 445 (8th Cir.2010) (quoting Gall v. United States, 552 U.S. 38, 52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The Supreme Court held in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve [18 U.S.C.] § 3553(a)’s purposes,” id. at 110, 128 S.Ct. 558. See also Spears v. United States, 555 U.S. -, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009) (per curiam) (“[W]e now clarify that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”). Following Kimbrough and Spears, we have consistently held that district courts are not required to vary downward based on the crack/powder disparity in the advisory guidelines. See, e.g., United States v. Woods, 603 F.3d 1037, 1040 (8th Cir.2010); United States v. Davis, 583 F.3d 1081, 1099 (8th Cir.2009), cert. denied, 559 U.S. -, 130 S.Ct. 1555, 176 L.Ed.2d 143 (2010). Here, the district court considered and rejected Brewer’s request for a variance based on the crack/powder disparity. Thus, “[t]he district court was well within its discretion not to vary downward.” See Davis, 583 F.3d at 1099. III. CONCLUSION For the foregoing reasons, we affirm Brewer’s convictions and sentence. . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. . The obstruction-of-justice enhancement was based on the district court’s finding that Brewer committed perjury when he testified that, among other things, he was selling video games, not crack cocaine, to Agent Meggers. . The Supreme Court decided" }, { "docid": "22202230", "title": "", "text": "See Mondragon-Santiago, 564 F.3d at 367. . 552 U.S. 85, 91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). .See id. at 96, 128 S.Ct. 558. . Id. at 91, 128 S.Ct. 558. . See United States v. Murray, 648 F.3d 251, 257-58 (5th Cir.2011); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.2009); United States v. Lemus-Gonzalez, 563 F.3d 88, 94-95 (5th Cir.2009). . U.S. Sentencing Comm'n, 2009 Sourcebook of Federal Sentencing Statistics 78-81 tbl. 28 (FY 2009). . Id. . See Duarte, 569 F.3d at 530. . Id. . See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). . Miller quotes United States v. Beiermann, 599 F.Supp.2d 1087, 1105 (N.D.Iowa 2009). . U.S. Sentencing Guide Manual § 2G2.2(b)(6) (2009). . Id. § 2G2.2(b)(7). . Id. § 2G2.2(b)(2). . Id. § 2G2.2(b)(4). . Id. § 2G2.2(b)(3)(B) or (F). . Id. § 2G2.2, Commentary n. 4(B)(ii). . Miller quotes United States v. Beiermann, 599 F.Supp.2d 1087, 1105 (N.D.Iowa 2009). . The district court stated at sentencing: I don’t have a real concern about the guidelines in this case. I look at the facts of this case and I see that the statutory range of punishment is 5 to 20 years. The guidelines are the guidelines and since Kimbrough and Gall, beginning with Booker, the guidelines are but one factor that this Court must consider in Title 18 of United States Code, Section 3553, to determine a sentence that is sufficient but not greater than necessary to comply with all of the factors set forth in 3553, one of which is the guidelines. As I have stated, the correct guideline range in my opinion is as computed by the Probation Department, which is 188 to 235 months. The statutory range is 60 months to 240 months, as I have said. It is with that that I start in this case, this particular case, trying to determine what the appropriate sentence would be. I will address one factor that I think should not be lost here, but that often gets lost — gets lost when" }, { "docid": "22971459", "title": "", "text": "addressing the crack and powder cocaine equivalencies, held that courts may vary from the Guidelines ranges “based solely on policy considerations, including disagreements with the Guidelines,” after considering the § 3553(a) factors, including the “overarching” parsimony provision. Id. (quotation omitted). The Kimbrough Court reasoned that the Commission’s recommendations are generally based “on empirical data and national experience,” but that in formulating the crack cocaine ranges, the Commission was not permitted to consider such data. See id. at 109-10, 128 S.Ct. 558. The implication is that the Guidelines ranges are given more weight when they are based on the Commission’s analysis of empirical data and national experience, and they are due less weight when they regularly result in sentences that are “ ‘greater than necessary1 in light of the purposes of sentencing set forth in § 3553(a).” See id.; see also Spears v. United States, 555 U.S. 261, 264-65, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009). We have not previously addressed this recency points variance argument in a published opinion. The First Circuit has done so and has rejected it. See United States v. Adams, 640 F.3d 41, 43 (1st Cir.2011). In unpublished opinions, moreover, we, along with at least five other circuits, have similarly rejected versions of the argument that a variance was required after the Commission promulgated the amendment but before the amendment became effective. See, e.g., United States v. Prado-Figueroa, No. 10-10305, — Fed.Appx.-,-, 2011 WL 2784098, at *1 (9th Cir. Jul. 18, 2011); United States v. Rodriguez-Sanchez, No. 10-10217, 433 Fed.Appx. 599, 600, 2011 WL 1898202, at *1 (9th Cir. May 19, 2011); United States v. Gonzalez-Molina, 409 Fed.Appx. 751, 752 (5th Cir.2011) (per curiam); In re Anderson, 409 Fed.Appx. 593, 594 (3d Cir.2011) (per curiam); United States v. Gadsden, 412 Fed.Appx. 523, 525 (3d Cir.2011); United States v. Dennis, 412 Fed.Appx. 452, 454-55 (3d Cir.2011); United States v. Mitchell, 402 Fed.Appx. 560, 562 (2d Cir.2010). No circuit has found a sentence substantively unreasonable where, after promulgation of the proposed amendment that reduced the sentencing range, a court declined to vary downward to account for inclusion of" }, { "docid": "20912104", "title": "", "text": "them both § 5K1.1 departures. Though Appellants may disagree with how the district court balanced the § 3553(a) factors, their argument that these factors should have been weighed differently is not a sufficient ground for reversal. III. For the reasons stated above, we AFFIRM. . U.S.S.G. § 2D1.1 rant. n.6. . Id. . U.S.S.G. § 2D1.1 cmt. n.8(D). . To recap, the PSRs determined that 1400 kilograms of AM-2201 was equivalent to 1400 kilograms of THC. They then multiplied 1400 by 167 to calculate the equivalent quantity of marijuana. . U.S.S.G. § 2D1.1(c)(1). . 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). .R.2236 (Dr. Trecki testifying that there is “no literature ... or expertise that explains why the ratio is 1:167’'); R.2347 (Dr. Cozzi testifying that there is no \"scientific basis\" for the ratio). . 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). . 102 F.3d 194 (5th Cir. 1996). . Id. at 197-98 & n. 5. . United States v. McCaskey, 9 F.3d 368, 380 (5th Cir. 1993) (per curiam). . See id. . U.S.S.G. § 6A1.3(a). . United States v. Cabrera, 288 F.3d 163, 170 (5th Cir. 2002) (per curiam) (quoting United States v. Rogers, 1 F.3d 341, 343-44 (5th Cir. 1993)). . United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). . See United States v. Figueroa, 647 F.3d 466, 469 (2d Cir. 2011); United States v. Brey, 627 Fed.Appx. 775, 779 n. 4 (11th Cir. 2015); United States v. Lane, 616 Fed.Appx. 328, 329 (9th Cir. 2015); United States v. Beckley, 515 Fed.Appx. 373, 375 (6th Cir. 2013). . United States v. Burns, 526 F.3d 852, 859 (5th Cir. 2008). . United States v. Nava, 624 F.3d 226, 229 (5th Cir. 2010) (quoting United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006)). . Burns, 526 F.3d at 859. . As with lay testimony, \"[a] district court’s assessment of the relative credibility of opposing expert witnesses is entitled to deference.” Henderson v. Norfolk S. Corp., 55 F.3d 1066, 1069 (5th Cir. 1995). .Accordingly, unlike United States v. Hagman, this" }, { "docid": "11431323", "title": "", "text": "one another” for the purpose of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), because the perpetrator could have stopped after the first crime. Robberies 36 days apart are even harder to describe as a “single criminal transaction”. But we need not decide, because the answer does not matter. Policy statement § 5K2.20 deals with departures from the Guidelines, and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made departures obsolete. The Guidelines are no longer binding; judges can use their own penal philosophies. See Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009); Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Corner, 598 F.3d 411 (7th Cir.2010) (en banc). Judges must start by correctly calculating the Sentencing Commission’s recommended range. See Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This benchmark helps to prevent unwarranted disparities. 18 U.S.C. § 3553(a)(6). Once the range has been determined, the sentence depends on the judge’s reasonable application of the criteria in § 3553(a), not on the Sentencing Commission’s recommendations about departures in the pre-Booker world. See United States v. Reyes-Medina, 683 F.3d 837, 841-42 (7th Cir.2012); United States v. Moreno-Padilla, 602 F.3d 802, 811 (7th Cir.2010); United States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir.2006). See also, e.g., United States v. Diosdado-Star, 630 F.3d 359, 364-66 (4th Cir.2011); United States v. Gutierrez, 635 F.3d 148, 153 (5th Cir.2011). There is no point spending time on the fine details of the outdated rules limiting departures. We can imagine situations in which a judicial error related to one of the policy statements in the § 5K2 range would be a ground of reversal after Booker. There would be. a problem, for example, if a district judge thought that, because a defendant does not qualify for a departure under a policy statement, the judge is forbidden to consider that circumstance. That" }, { "docid": "6648064", "title": "", "text": "court’s decision to impose a below-guideline sentence was in any way related to the crack/powder disparity. We cannot assume that the district court implicitly considered Johnson’s argument for a reduced ratio merely because it imposed a below-guideline sentence. Rather, we assume only that if the district court had applied a reduced ratio or decided to impose a below-guideline sentence based on the crack/powder disparity, it would have expressly or implicitly indicated as much on the record. Accordingly, we vacate Johnson’s sentence and remand to give the district court an opportunity to consider and address his arguments for a reduced crack-to-powder ratio. The district court need not conduct a complete sentencing hearing, although, as we explain below, we invite it to do so. We reject Johnson’s request for a broader remedy. Relying on Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), he asks us to categorically prohibit the district courts in the Northern District of Illinois from using the 100:1 ratio based on policy considerations indicating the disparity’s unfairness. But Spears does not authorize us to grant such relief. The Court in Spears wrote merely that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Id. at 843-44 (emphasis added); see also United States v. Corner, 598 F.3d 411, 414-15 (7th Cir.2010). That authority resides in district courts, not courts of appeals. See Spears, 129 S.Ct. at 843-44; Kimbrough, 552 U.S. at 91, 110, 128 S.Ct. 558; see also Corner, 598 F.3d at 415 (“We understand Kimbrough and Spears to mean that district judges are at liberty to reject any Guideline on policy grounds— though they must act reasonably when using that power.”). The courts of appeals review sentences for procedural errors and substantive reasonableness, see, e.g., Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. West, 628 F.3d 425, 431 (7th Cir.2010), but we cannot categorically prohibit all sentencing courts from applying a 100:1 ratio. We thus reject Johnson’s final argument related to" }, { "docid": "20912106", "title": "", "text": "is not a case where \"the evidence appears to be equally balanced, or we cannot say upon which side it weighs heavier.” 740 F.3d 1044, 1052 (5th Cir. 2014). We also note that Hagman may no longer be good law in the wake of this Court’s decision in United States v. Vargas-Ocampo, which rejected the applicability of the “equipoise rule” in the related context of sufficiency of the evidence to support a conviction. See 747 F.3d 299, 301 (5th Cir. 2014) (en banc). . United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009). . United States v. Aguilar-Huerta, 576 F.3d 365, 368 (7th Cir. 2009). . United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011). . 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); see also Spears v. United States, 555 U.S. 261, 264, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam) (\"That was indeed the point of Kimbrough: a recognition of district courts' authority to vary from the crack cocaine Guidelines based on policy disagreement with them....\"). . United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008). . See Duarte, 569 F.3d at 530-31. . See, e.g., United States v. Clay, 787 F.3d 328, 332 (5th Cir. 2015); United States v. Garcia, 655 F.3d 426, 432-34 (5th Cir. 2011). . See also R.2350 (\"What you’re talking about there is the relativity of one conversion — as we all know, 2D 1.1(d) converts everything to marijuana. It's the coin of the realm.”). . See also R.2351 (\"[B]ut still in Kim-brough — and, here again, I invite contradiction — the conversion is between one equivalency to another equivalency and saying that that is the ratio that's unfair. It seems that the 1:167 is not that. That's going across the page and not up and down the page if you get what I’m saying.”). . Cf. Molina-Martinez v. United States, - U.S.-, 136 S.Ct. 1338, 1348, 194 L.Ed.2d 444 (2016) (\"Courts have ... developed mechanisms short of a full remand" }, { "docid": "22202228", "title": "", "text": "Cir.2010) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)), cert. denied, - U.S. -, 131 S.Ct. 997, 178 L.Ed.2d 832 (2011). . United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.2008) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). . 18 U.S.C. § 3553(a). Those purposes are: (2) the need for the sentence imposed'— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner .... Id. § 3553(a)(2). . Id. § 3553(a)(1). . See United States v. Duarte, 569 F.3d 528, 529 (5th Cir.2009) (noting that \"numerous panels of this court have faced and rejected arguments” that the presumption of reasonableness should be removed as to \"non-empirically-grounded provisions of the Guidelines”); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009) (holding that, even when a Guideline is not empirically based, “we will presume a sentence within the current version of the Guidelines to be reasonable, and the defendant must rebut that presumption to demonstrate substantive unreasonableness”). . United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009) (citing United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.2007)). . 616 F.3d 174, 183 (2d Cir.2010) (\"Dorvee’s sentence was a within-Guidelines sentence. However, we do not presume that such sentences are reasonable when we review them substantively.”) (citing United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006)). . Id. at 176. . Id. at 183. . Id. at 187 (“The irrationality in § 2G2.2 is easily illustrated by two examples.”). . Id. at 184-86. . Id. . Id. at 186. . Id. at 187. . Id. . Id. . Id. at 188. . See United States v. Duarte, 569 F.3d 528, 529 (5th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009). ." }, { "docid": "22202229", "title": "", "text": "United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009) (holding that, even when a Guideline is not empirically based, “we will presume a sentence within the current version of the Guidelines to be reasonable, and the defendant must rebut that presumption to demonstrate substantive unreasonableness”). . United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009) (citing United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.2007)). . 616 F.3d 174, 183 (2d Cir.2010) (\"Dorvee’s sentence was a within-Guidelines sentence. However, we do not presume that such sentences are reasonable when we review them substantively.”) (citing United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006)). . Id. at 176. . Id. at 183. . Id. at 187 (“The irrationality in § 2G2.2 is easily illustrated by two examples.”). . Id. at 184-86. . Id. . Id. at 186. . Id. at 187. . Id. . Id. . Id. at 188. . See United States v. Duarte, 569 F.3d 528, 529 (5th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009). . See Mondragon-Santiago, 564 F.3d at 367. . 552 U.S. 85, 91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). .See id. at 96, 128 S.Ct. 558. . Id. at 91, 128 S.Ct. 558. . See United States v. Murray, 648 F.3d 251, 257-58 (5th Cir.2011); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.2009); United States v. Lemus-Gonzalez, 563 F.3d 88, 94-95 (5th Cir.2009). . U.S. Sentencing Comm'n, 2009 Sourcebook of Federal Sentencing Statistics 78-81 tbl. 28 (FY 2009). . Id. . See Duarte, 569 F.3d at 530. . Id. . See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). . Miller quotes United States v. Beiermann, 599 F.Supp.2d 1087, 1105 (N.D.Iowa 2009). . U.S. Sentencing Guide Manual § 2G2.2(b)(6) (2009). . Id. § 2G2.2(b)(7). . Id. § 2G2.2(b)(2). . Id. § 2G2.2(b)(4). . Id. § 2G2.2(b)(3)(B) or (F). . Id. § 2G2.2, Commentary n. 4(B)(ii). . Miller quotes United States v. Beiermann, 599 F.Supp.2d 1087, 1105 (N.D.Iowa 2009). . The district court stated at sentencing: I don’t" }, { "docid": "22086832", "title": "", "text": "Commission’s exercise of its characteristic institutional role.” Id. In formulating the Guideline ranges for crack cocaine offenses, the Commission looked to the mandatory minimum sentences for cocaine offenses, which adopted a ratio that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine, and did not take account of empirical data and national experience. Id. Yet the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses “greater than necessary” in light of the purposes of sentencing set forth in § 3553(a). Id. at 110, 128 S.Ct. 558. The Court therefore held that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a minerun case.” Id. In Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), the Court clarified that “Kimbrough ... holds that with respect to the crack cocaine Guidelines, a categorical disagreement with and variance from the Guidelines is not suspect.” Id. at 843. The Court emphatically stated: “That was indeed the point of Kimbrough: a recognition of district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular ease.” Id. at 842^43. Kimbrough’s rationale is not limited to the crack-cocaine Guidelines. See United States v. Mitchell, 624 F.3d 1023, 1030 (9th Cir.2010) (“As the Supreme Court through Booker, Kimbrough, and Spears has instructed, and as other circuits that have confronted the erack/powder variance in the sentence of a career offender have accepted and clarified in their circuit law, sentencing judges can reject any Sentencing Guideline, provided that the sentence imposed is reasonable.”) (emphasis in original). See also United States v. Corner, 598 F.3d 411, 415 (7th Cir.2010) (“We understand Kimbrough and Spears to mean that district judges are at liberty to reject any Guideline on policy grounds — though they" }, { "docid": "23375823", "title": "", "text": "held that a district court may vary a defendant’s sentence upon concluding that “the craek/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case,” id. at 110, 128 S.Ct. 558. See also Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009) (per curiam) (“[District courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”). Though Marrero was sentenced under the career-offender provisions of U.S.S.G. § 4B1.1 rather than the drug-quantity table of U.S.S.G. § 2D1.1, the sentencing disparity between crack and powder cocaine offenses is “implicitly incorporated” in his career-offender enhancement. United States v. Michael, 576 F.3d 323, 327 (6th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 819, 175 L.Ed.2d 574 (2009). Therefore, the logic of Kimbrough and Spears still applies, and a “categorical disagreement with the [erack-to-powdercocaine] ratio may ... support a district court’s rejection of the career offender enhancement.” United States v. Curb, 625 F.3d 968, 972 (6th Cir.2010). Marrero claims that the district court did not understand its authority to categorically disagree with the crack-cocaine Guidelines, making his sentence procedurally deficient. See Moore v. United States, 555 U.S. 1, 129 S.Ct. 4, 172 L.Ed.2d 1 (2008) (per curiam); United States v. Johnson, 553 F.3d 990, 996 (6th Cir.2009). In the proceedings below, Marrero repeatedly contested the application of the crack-cocaine disparity to his sentence. However, Marrero never argued to the district court that it should impose a downward departure based on a categorical disagreement with the Guidelines. Rather, he only argued for a downward departure based on his mistaken belief that Congress had eliminated the contested disparity. Additionally, Marrero responded negatively when, at the close of the sentencing hearing, the district court asked him whether he had “any other objections to the sentence ... imposed.” As a result, we review his request for remand under a plain-error standard. See United States v. Simmons, 587 F.3d 348, 354-58 (6th Cir.2009) (determining that plain-error review applied to defendant’s procedural argument for remand in light" }, { "docid": "6648059", "title": "", "text": "but it must address “ ‘all of a defendant’s principal arguments that are not so wreak as to not merit discussion.’ ” United States v. Arberry, 612 F.3d 898, 899 (7th Cir.2010) (quoting United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009)). At resentencing, the district court briefly discussed some of the factors in § 3553(a). But it never responded to Johnson’s repeated requests for a reduced ratio. Johnson specifically referenced the district court’s authority “to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines,” Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 844, 172 L.Ed.2d 596 (2009), listed policy grounds that have motivated other sentencing courts to apply a reduced crack-to-powder ratio, and asked multiple times for a reduced ratio. His argument for a reduced ratio was one of his primary contentions at resentencing and was certainly not so weak as to not merit discussion. See id. at 843-44; Kimbrough v. United States, 552 U.S. 85, 91, 110, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); Arberry, 612 F.3d at 899-901. In fact, numerous other judges in the Northern District of Illinois have applied lower ratios. See, e.g., United States v. Edwards, No. 04-cr-1090-5, slip op. at 6, 2009 WL 424464, at *3 (N.D.Ill. Feb. 17, 2009) (Gottschall, J.) (concluding “that a 10:1 ratio is all that can possibly be justified” in light of “evidence that the harms produced by powder and crack are essentially the same (with the unquantifiable possibility that crack may be more addictive)”); United States v. Rodriguez, No. 08-cr-509-1, slip op. at 4-5, 2009 WL 1811001, at *2 (N.D.Ill. June 23, 2009) (Darrah, J.) (applying a 20:1 ratio). Our holding in United States v. Arberry, 612 F.3d 898 (7th Cir.2010), is directly on point. In that case, we vacated a defendant’s sentence and remanded for resentencing because the district court did not respond to the defendant’s argument for a 1:1 ratio, which was one of his principal arguments at sentencing. Id. at 900-01. We disagree with the government’s contention that Arberry is meaningfully distinct because the" } ]

[ { "docid": "5589008", "title": "", "text": "formally arrested, handcuffed and given the standard Miranda warning, after which a smaller quantity of marijuana and some cocaine were discovered in his pocket. A search of the airplane disclosed evidence indicating that it had been used for transporting narcotics on trips from Mexico. The Stop and Detention Appellant contends that the gunpoint stop and detention constituted an arrest for which the officers lacked probable cause, thereby rendering the arrest illegal and requiring that any evidence stemming therefrom be suppressed. At the suppression hearing the district court specifically rejected the contention that appellant was under arrest when ordered out of the airplane and questioned by the officers. Precisely when in each case an arrest has occurred is a question of fact which depends on an evaluation of all the surrounding circumstances. Peters v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 (1968); Rios v. United States, 364 U.S. 253, 261-262, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). The record on appeal supports the district court’s conclusion. Accordingly, we hold that appellant was not arrested, but merely stopped and detained, until after the discovery of the contraband. It seems clear that an investigatory stop was justified at its inception. The specific facts known to the officers about appellant’s landings at an airport close to the border in an airplane believed to, be owned by a narcotics dealer, the prior discovery of the body pack and parking lot receipt in the rented automobile, and the furtive handling of the package followed by the attempt to hastily depart, together with the rational inferences which the officers could draw from these facts, certainly were sufficient to create a “founded suspicion” on their part that “criminal activity might be afoot.” A stop for the purpose of further investigation was, therefore, warranted. United States v. Fisch, 474 F.2d 1071, 1075-1076 (9th Cir.), cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973); United States v. Leal, 460 F.2d 385, 387-388 (9th Cir. 1972); United States v. Brown, 436 F.2d 702, 705 (9th Cir. 1970). We think the officers acted" } ]

[ { "docid": "22914172", "title": "", "text": "to “freeze” and was forced to stand spread-eagle against a wall); United States v. Moreno, 897 F.2d at 31 (the defendant was arrested “when [the police officer] pushed [the defendant] against the wall and told him not to move”). See generally Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969). It follows that once the intrusion of an arrest has occurred, its definition does not depend upon what follows, such as station house booking. See United States v. Brunson, 549 F.2d 348, 357 (5th Cir.), cert. denied, 434 U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107 (1977) (citation omitted). From the foregoing, it is clear that the district court in this case incorrectly believed that to be actionable Posr’s arrest had to be formal and accompanied by a detention pending arraignment. If to a reasonable observer, either Holihan or Do-herty or both, upon physical contact with Posr, acted with an unreasonable level of intrusion given the totality of the circumstances in restraining Posr’s freedom of movement to the point where he did not feel free to leave, than an arrest could be found. The issue of precisely when an arrest takes place is a question of fact. See Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968) (an arrest occurred when policeman “seized” the suspect and curtailed his movement by grabbing his collar). Here, there was evidence presented from which the jury could have found that Holihan, before Doherty arrived to assist him, had arrested Posr. At their initial altercation, according to plaintiff, Holihan took physical control of Posr and “slammed” him against a wall while exclaiming “assaulting a police officer, you are dead.” This was sufficient for a jury to find that Holihan had “seized” Posr, in that Posr did not feel free to leave, in a manner that was unreasonably intrusive under the circumstances. The district court’s second ground" }, { "docid": "22914170", "title": "", "text": "to be classified as an investigative detention, the encounter is a full-scale arrest, and the government must establish that the arrest is supported by probable cause.” Hastamorir, 881 F.2d at 1556; see also United States v. Espinosa, 782 F.2d 888, 891 (10th Cir.1986) (“an arrest, is a seizure characterized by [a] highly intrusive or lengthy search or detention”); Seelye, 815 F.2d at 50 (“if the force used exceeds these limits, an investigatory stop is converted into an arrest.”). Of course either an arrest or a detention supportable by less than probable cause may be actionable under § 1983, provided the “seizure” in question is “unreasonable.” See Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 1382-83, 103 L.Ed.2d 628 (1989). However, since Posr has alleged an unconstitutional “false arrest” instead of a mere “unreasonable seizure,” we must determine whether the encounter between him and Holihan could have amounted to an arrest. There is no bright line rule differentiating an arrest from a detention supportable by less than probable cause. See Florida v. Royer, 460 U.S. at 506, 103 S.Ct. at 1329. Whether a seizure is an arrest or a merely an investigatory detention, depends on the reasonableness of the level of intrusion under the totality of the circumstances. United States v. Martinez, 808 F.2d 1050, 1053 (5th Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987); see generally United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Therefore whether an officer has exceeded the least intrusive means of dealing with a suspect and effected an arrest depends on the facts surrounding their encounter, and must be assessed in light of those facts. An arrest need not be characterized by the same level of intrusiveness in every circumstance. An arrest need not be formal; it may occur even if the formal words of arrest have not been spoken provided that the subject is restrained and his freedom of movement is restricted. See United States v. Levy, 731 F.2d 997, 1000 (2d Cir.1984) (an arrest occurred when suspect was ordered" }, { "docid": "22914171", "title": "", "text": "Royer, 460 U.S. at 506, 103 S.Ct. at 1329. Whether a seizure is an arrest or a merely an investigatory detention, depends on the reasonableness of the level of intrusion under the totality of the circumstances. United States v. Martinez, 808 F.2d 1050, 1053 (5th Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987); see generally United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Therefore whether an officer has exceeded the least intrusive means of dealing with a suspect and effected an arrest depends on the facts surrounding their encounter, and must be assessed in light of those facts. An arrest need not be characterized by the same level of intrusiveness in every circumstance. An arrest need not be formal; it may occur even if the formal words of arrest have not been spoken provided that the subject is restrained and his freedom of movement is restricted. See United States v. Levy, 731 F.2d 997, 1000 (2d Cir.1984) (an arrest occurred when suspect was ordered to “freeze” and was forced to stand spread-eagle against a wall); United States v. Moreno, 897 F.2d at 31 (the defendant was arrested “when [the police officer] pushed [the defendant] against the wall and told him not to move”). See generally Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969). It follows that once the intrusion of an arrest has occurred, its definition does not depend upon what follows, such as station house booking. See United States v. Brunson, 549 F.2d 348, 357 (5th Cir.), cert. denied, 434 U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107 (1977) (citation omitted). From the foregoing, it is clear that the district court in this case incorrectly believed that to be actionable Posr’s arrest had to be formal and accompanied by a detention pending arraignment. If to a reasonable observer, either Holihan or Do-herty or both, upon" }, { "docid": "19104503", "title": "", "text": "392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914). Levy claims, however, that the search was not incident to the arrest because it preceded the arrest and the arrest would not have occurred if the search had not revealed the presence of narcotics. Therefore, according to Levy, the heroin seized in the search should have been excluded under Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968). We disagree. The district court found that Levy had already been arrested at the time of the search. Before Agent Kibble searched Levy, he approached Levy with his weapon drawn, showed Levy his DEA shield, ordered Levy to “freeze” and forced Levy to stand spread-eagle against a wall. Precisely when an arrest occurs depends on the facts of the particular case. United States v. Richards, 500 F.2d 1025, 1028 (9th Cir. 1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975). An arrest may occur even if the formal words of arrest have not yet been spoken if a person is restrained and his freedom of movement is restricted. See Henry v. United States, 361 U.S. 98, 102-03, 80 S.Ct. 168, 171-72, 4 L.Ed.2d 134 (1959); United States v. Skinner, 412 F.2d 98, 103 (8th Cir.), cert. denied, 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (1969); United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969). Without question, Levy was restrained and his freedom of movement was restricted before Agent Kibble removed the bag from his pocket. Therefore, the district court’s finding that arrest preceded the search is not clearly erroneous. Appellant next argues that an arresting officer is constitutionally required to procure an arrest warrant if there is ample time to do so. This argument has been rejected by the Supreme Court, United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 827, 46 L.Ed.2d 598 (1976). While a warrant may be preferable, it is not a constitutional requirement. See United States v. Rollins," }, { "docid": "12517348", "title": "", "text": "must agree that Birdsong was in fact under arrest the moment the agents initially interrupted his liberty — and that occurred when they ordered him out of his car, surrounded him, and took the key from the ignition. The case law makes it plain that Birdsong was under arrest at this moment, even though the formal words of arrest had not yet been uttered. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); United States v. Boston, 2d Cir., 330 F.2d 937, cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964). “That the search and seizure may have preceded the formal announcement of the arrest by a few moments is not vital.” United States v. Boston, 330 F.2d at 939. See also Lovelace v. United States, 5th Cir. 1966, 357 F.2d 306, 310; Holt v. Simpson, 7th Cir. 1965, 340 F.2d 853, 856; Fernandez v. United States, supra, 321 F.2d at 287, n. 8. And it is well established that a search incident to an arrest, so long as the arrest is made with probable cause, does not require a warrant. Henry v. United States, supra; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Carroll v. United States, 267 U.S. 132, 155-156, 45 S.Ct. 280, 285-286, 69 L.Ed. 543 (1925). Thus, under the applicable authority, the conclusion is inescapable that Birdsong’s arrest was predicated on probable cause, and that the search of his car was simultaneous with, and therefore incident to, his arrest. The conviction must be Affirmed. . 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). . 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1960). See note 4 infra. . We have excluded from our analysis of the probable cause problem the information these officers obtained through their entry, without a warrant, into Birdsong’s house because we think that entry was questionable. We note that the officers found a still in the house, and this information was admitted in the trial below. Nevertheless, the admission into evidence of this" }, { "docid": "22254353", "title": "", "text": "the show of force was deemed unreasonably intrusive. United States v. Beck, 598 F.2d 497 (9th Cir. 1979); see Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959) (government conceded, and Court agreed, that arrest took place when agents waved car to a stop; no indication that agents drew guns); United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969) (arrest occurred when officer ordered suspect out of parked truck at gunpoint); United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974) (car surrounded by officers issuing orders at gunpoint); United States v. Ramos-Zaragosa, 516 F.2d 141 (9th Cir. 1975) (order to stop car, made at gunpoint while car in motion, held an arrest). Obviously, each case must be judged with particular reference to its own facts. See Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). The Mes;'case raises close questions as to both the reasonableness of the grounds for making an investigatory stop and the degree of intrusiveness. We believe, however, that on the whole, despite the fact that Mesas had not theretofore been the focus of Task Force attention, each action taken by officers Siegel and Heckmann was reasonable in light of what had gone before. First, Amparo Medina, whom the Task Force had excellent reason to believe was a distributor of narcotics, had left 633 Grand Street at 7:10 p. m. The building was under virtually constant surveillance from the time of Amparo’s arrival until the Mesas were taken to the nearby police precinct. Neither Siegel nor Heckmann had seen the Mesas enter; therefore they could infer that the Mesas had been in the building before Amparo arrived and were there during her 40-minute stay. The fact that lights were, and had been, visible only on the fourth floor of the building made it more likely than not that all present in the building were on the fourth floor. Thus, there were articulable grounds for placing the Mesas" }, { "docid": "10352633", "title": "", "text": "United States ex rel. LaBelle v. LaVallee, 517 F.2d 750, 753 (2d Cir. 1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 803, 46 L.Ed.2d 655 (1976). Under § 140.10(l)(b) of the New York Criminal Procedure Law (McKinney 1971), a police officer may arrest a person for a crime “when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.” Since reasonable cause under § 140.10(l)(b) is the same as probable cause under the United States Constitution, People v. Fields, 50 A.D.2d 870, 376 N.Y.S.2d 943 (2d Dep’t 1975); see United States ex rel. Gonzales v. Follette, 397 F.2d 232, 234 (2d Cir. 1968), an officer may effect an arrest when he has knowledge of facts and circumstances sufficient to warrant a prudent man in believing that an offense is being or has been committed. Carroll v. United States, 267 U.S. at 161, 45 S.Ct. 280; Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Edmonds, 535 F.2d 714, 719 (2d Cir. 1976). It does not matter whether the arrest is ultimately found justified, for before making an arrest the police need not conduct a trial, Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974); Lathers v. United States, 396 F.2d 524, 532 (5th Cir. 1968), or assemble evidence sufficient to establish guilt. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Chaplin, 427 F.2d 14, 15 (2d Cir.), cert. denied, 400 U.S. 830, 91 S.Ct. 59, 27 L.Ed.2d 60 (1970). The thoughts and actions of the police officers are not, in other words, to be judged with the “full clarity of hindsight.” United States v. Tramunti, 377 F.Supp. 1, 5 (S.D.N.Y.1974), aff’d, 513 F.2d 1087 (2d Cir. 1975). Logically, in order to determine whether Von Werne had probable cause to arrest Barnes, and therefore whether Dunphy had probable cause to search the Mercedes, one must first inquire as to when the arrest of Barnes occurred. See Sibron v. New York, 392 U.S." }, { "docid": "8818109", "title": "", "text": "and detained for the purposes of limited inquiry and weapons frisk, Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or “to maintain the status quo momentarily while obtaining more information,” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), the dimensions of an encounter bettveen the individual and officer may be sufficiently constrictive to cause the average person, innocent of crime, to reasonably think that he was being arrested. See United States v. Scheiblauer, 472 F.2d 297, 301 (9t,h Cir. 1973). In evaluating the surrounding circumstances of the encounter, a significant consideration is the extent that freedom of movement is curtailed. Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974). However, more than the restriction of liberty is required. The other critical consideration is the degree and manner of force used in the stop and detention. But utilization of force in making a stop will not convert the stop into an arrest if it is precipitated by the conduct of the individual being detained, United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert, denied, 434 U.S. 973, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1977); United States v. Richards, 500 F.2d at 1028 29, or if it occurs under circumstances justifying fears for personal safety. United States v. Russell, 546 F.2d 839, 840 (9th Cir. 1976) (Wright, J., specially concurring). Utilizing the required objective analysis, we conclude that the arrest of Beck and Dickerson occurred prior to the discovery of the contraband by an overwhelming show of authority and by implied restraint which immediately ripened into actual physical restraint and custody. While the question is close, the contrary finding by the trial court that this was a mere investigatory stop and frisk is clearly erroneous. Beck, Dickerson and McDowell had shown no signs of hostility or resistance when they were first questioned and searched" }, { "docid": "22254352", "title": "", "text": "to the curb. United States v. Manuel Vasquez, 634 F.2d 41 (2d Cir. 1980). See also Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 334, 54 L.Ed.2d 331 (1977) (per curiam) (frisk upheld by officer who stopped automobile for traffic violation and noticed bulge in driver’s jacket). And see United States v. Diggs, 522 F.2d 1310, 1314 (D.C.Cir.1975), cert. denied, 429 U.S. 852, 97 S.Ct. 144, 50 L.Ed.2d 127 (1976), in which officers, investigating an armed robbery that had occurred just hours before, approached a car with their guns drawn and ordered the occupants to raise their hands. The majority opinion apparently treated this as merely a forcible stop, and found it justified by “powerful suspicion” that the occupants had just participated in the robbery. In several cases, officers’ approaches to automobiles have been held to be so intrusive as to constitute or be tantamount to arrests, for which probable cause is required. For example, where nine officers, even without drawing their guns, ordered a taxi off the road and surrounded the passengers, the show of force was deemed unreasonably intrusive. United States v. Beck, 598 F.2d 497 (9th Cir. 1979); see Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959) (government conceded, and Court agreed, that arrest took place when agents waved car to a stop; no indication that agents drew guns); United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969) (arrest occurred when officer ordered suspect out of parked truck at gunpoint); United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974) (car surrounded by officers issuing orders at gunpoint); United States v. Ramos-Zaragosa, 516 F.2d 141 (9th Cir. 1975) (order to stop car, made at gunpoint while car in motion, held an arrest). Obviously, each case must be judged with particular reference to its own facts. See Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). The Mes;'case raises close questions as to both the reasonableness" }, { "docid": "19104502", "title": "", "text": "officer must have probable cause. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441 (1963). A DEA agent must meet the same probable cause standard as any other arresting officer in making a constitutionally valid warrantless arrest. See Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959) (FBI agents’ statutory authority to arrest upon “reasonable grounds” to believe felony committed states the constitutional standard of probable cause); United States v. Shyvers, 385 F.2d 837 (2d Cir.1967) (narcotics agent’s arrest on probable cause found valid and evidence seized therein found admissible), cert. denied, 390 U.S. 998, 88 S.Ct. 1203, 20 L.Ed.2d 98 (1968). Levy has conceded that probable cause existed at the time of the search and arrest. Therefore, his arrest was valid. As incident to the valid arrest, the DEA agents could search Levy for weapons or evidence. Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914). Levy claims, however, that the search was not incident to the arrest because it preceded the arrest and the arrest would not have occurred if the search had not revealed the presence of narcotics. Therefore, according to Levy, the heroin seized in the search should have been excluded under Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968). We disagree. The district court found that Levy had already been arrested at the time of the search. Before Agent Kibble searched Levy, he approached Levy with his weapon drawn, showed Levy his DEA shield, ordered Levy to “freeze” and forced Levy to stand spread-eagle against a wall. Precisely when an arrest occurs depends on the facts of the particular case. United States v. Richards, 500 F.2d 1025, 1028 (9th Cir. 1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975). An arrest may occur even if the formal words of arrest have not yet been spoken if" }, { "docid": "8818108", "title": "", "text": "conduct of the nine customs patrol officers in effectuating the stop of the taxi in which they were passengers and in further detaining them was such as to constitute an arrest. Because the arrest was without probable cause, appellants further maintain, the arrest was illegal and the evidence seized must be suppressed accordingly. The line between an arrest without probable cause and an investigatory stop based on founded suspicion is blurred and often difficult to detect, but the task here is less troublesome than in most cases. See United States v. Ramos-Zaragosa, footnote 3, infra. Whether an arrest has occurred “depends on an evaluation of all the surrounding circumstances,” United States v. Richards, 500 F.2d 1025, 1028 (9th Cir. 1974), cert, denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975), and not the subjective intent of the officers involved. Taylor v. State of Arizona, 471 F.2d 848, 851 (9th Cir. 1972), cert, denied, 409 U.S. 1130, 93 S.Ct. 948, 35 L.Ed.2d 262 (1973). While recognizing that a suspicious individual may be briefly stopped and detained for the purposes of limited inquiry and weapons frisk, Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or “to maintain the status quo momentarily while obtaining more information,” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), the dimensions of an encounter bettveen the individual and officer may be sufficiently constrictive to cause the average person, innocent of crime, to reasonably think that he was being arrested. See United States v. Scheiblauer, 472 F.2d 297, 301 (9t,h Cir. 1973). In evaluating the surrounding circumstances of the encounter, a significant consideration is the extent that freedom of movement is curtailed. Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974). However, more than the restriction of liberty is required. The other critical consideration is the degree and manner of force used" }, { "docid": "19104501", "title": "", "text": "Amendment unless a warrant is first secured. Jones v. United States, 357 U.S. 493, 497-99, 78 S.Ct. 1253, 1256-57, 2 L.Ed.2d 1514 (1958). However, the courts have identified some “jealously and carefully drawn” exceptions to the warrant requirement. Id. at 499, 78 S.Ct. at 1257. Such an exception is a search incident to a valid arrest. Id. The exception exists to allow an arresting officer to “disarm the suspect in order to take him into custody ... [and] to preserve evidence on [the suspect’s] person for later use at trial.” United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973). “It is the fact of the lawful arrest which establishes the authority to search,” and such a search is a “reasonable” search under the Fourth Amendment. Id. at 235, 94 S.Ct. at 477. To qualify as an exception, the arrest giving rise to the search must be valid. Id. at 234, 94 S.Ct. at 476. To make a public arrest valid for purposes of the Fourth Amendment, the arresting officer must have probable cause. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441 (1963). A DEA agent must meet the same probable cause standard as any other arresting officer in making a constitutionally valid warrantless arrest. See Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959) (FBI agents’ statutory authority to arrest upon “reasonable grounds” to believe felony committed states the constitutional standard of probable cause); United States v. Shyvers, 385 F.2d 837 (2d Cir.1967) (narcotics agent’s arrest on probable cause found valid and evidence seized therein found admissible), cert. denied, 390 U.S. 998, 88 S.Ct. 1203, 20 L.Ed.2d 98 (1968). Levy has conceded that probable cause existed at the time of the search and arrest. Therefore, his arrest was valid. As incident to the valid arrest, the DEA agents could search Levy for weapons or evidence. Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925); Weeks v. United States, 232 U.S. 383," }, { "docid": "8098386", "title": "", "text": "defendant was affirmed on the ground that it was pursuant to a lawful arrest. 392 U.S. at 66, 88 S.Ct. at 1904. . The state had conceded that probable cause was lacking at the time of the encounter and ensuing search. Id. at 62, 88 S.Ct. at 1902. . There is still debate over whether Terry authorizes a brief detention for investigative purposes where no officer has observed behavior suggesting criminal activity. See Preiser, Confrontations Initiated by the Police on Less Than Probable Cause, 45 Albany L.Rev. 57 (1980). . E. g., Sibron v. New York, 392 U.S. 40, 46-7, 88 S.Ct. 1889, 1894, 20 L.Ed.2d 917 (1968) (held not investigatory stop because policeman had no intention of asking questions); cf. United States v. Bull, 565 F.2d 869, 870 (4th Cir. 1977), cert. denied, 435 U.S. 946, 98 S.Ct. 1531, 55 L.Ed.2d 545 (1978) (testimony of officer that he intended stop-and-frisk, not arrest, accepted). . E. g., United States v. Oates, 560 F.2d 45, 57 (2d Cir. 1977) (“significant ... [that customs officers] did not ... represent in any way that their detainees were being placed under arrest”); United States v. Richards, 500 F.2d 1025, 1029 (9th Cir. 1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975) (“While an arrest can be made without the use of such [formal words of arrest], ... the absence of such words ... indicate that appellant was merely detained for investigative questioning[J”). . E. g., United States v. Richards, supra, 500 F.2d at 1029; Arnold v. United States, 382 F.2d 4, 7 (9th Cir. 1967). . E. g., United States v. Purry, 545 F.2d 217, 219-20 (D.C.Cir.1976) (held investigatory stop when policeman stopped appellant, asked for identification and about bank robbery); cf. United States v. Barber, 557 F.2d 628, 632 (8th Cir. 1977) (fact that no questions asked indicative of arrest, not investigatory stop). . E. g., Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 343, 62 L.Ed.2d 238 (1979) (conviction reversed because search exceeded frisk for weapons permissible on investigatory stop); Government of Canal Zone v. Bender," }, { "docid": "19104499", "title": "", "text": "seen protruding from his pockets. When Levy emerged from the bank, Agent Kibble noticed “a brown paper bag which was protruding from [Levy’s] right pocket.” Levy walked across the street where he was approached by Kibble and Special Agent Higgs. Kibble drew his weapon and held up his DEA shield. Levy reached for the bag and Kibble ordered him to “freeze” and raise his hands. Kibble then walked Levy to a wall, had him stand spread-eagle, patted him down for weapons and removed the protruding brown paper bag. Kibble opened the bag and saw a powdered substance packaged in plastic “baggies.” Levy was informed that he was under arrest and advised of his constitutional rights. Laboratory analysis confirmed that the powder was heroin. Levy conceded that the agents had probable cause to arrest him, but nevertheless moved to suppress, the heroin on the grounds that (1) his arrest was unlawful because the agents failed to obtain an arrest warrant when they had ample opportunity to do so, and (2) he had been illegally searched without a search warrant. At a hearing on July 7, 1982, Judge Glasser denied the motion. Levy then waived his right to a jury trial pursuant to Fed.R.Crim.P. 23(a). The parties stipulated to the facts as presented in the suppression hearing and the district court found Levy guilty as charged on November 26, 1982. B. Discussion Levy claims that the district court erred by refusing to suppress the heroin seized from his person in violation of the Fourth Amendment because the search and seizure took place without a warrant. Levy asserts that the facts do not fit any exception to the Fourth Amendment search warrant requirement because it was neither a search incident to a valid arrest nor an investigative “stop and frisk.” Levy also suggests that the agents’ failure to procure an arrest warrant, despite ample time to do so, rendered the arrest and the search illegal. We reject both claims and agree with the district court that the heroin was admissible. A search is presumed to be unreasonable and in violation of the Fourth" }, { "docid": "8429639", "title": "", "text": "92 S.Ct. 1921, 32 L.Ed.2d 612.) The restriction of Strickler’s “liberty of movement” was complete when he was encircled by police and confronted with official orders made at gunpoint. (See Henry v. United States (1959) 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134; United States v. Selby (9th Cir. 1969) 407 F.2d 241, 242; Jackson v. United States (8th Cir. 1969) 408 F.2d 1165, 1168.) No significant, new restraint was added when Officer Ripley, a few moments later, handcuffed Strickler and formally pronounced him “under arrest.” Thus, the arrest was completed before Officer Ripley reached the window of the Cadillac. (Cf. Rios v. United States (1960) 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Henry v. United States, supra; Plazola v. United States (9th Cir. 1961) 291 F.2d 56; Bailey v. United States (1967) 128 U.S. App.D.C. 354, 389 F.2d 305, 307-308.) The constitutionality of the police conduct, therefore, depends upon whether, at the moment the police surrounded Strickler’s automobile and leveled a gun at him, the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that Striekler had committed or was committing a criminal offense. (See Beck v. Ohio (1964) 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142; Henry v. United States, supra, 361 U.S. at 102, 80 S.Ct. 168, 4 L.Ed.2d 134.) The Government failed to carry its burden of proving that probable cause to arrest existed. Before his arrest, the police had no information which implicated Strickler in any way in the cocaine negotiations. No one testified that Velma Strickler had been seen in the Cadillac, or that the Cadillac was connected with the cocaine. The arrest was based solely upon Strickler’s proximity to a residence where cocaine was being delivered and his participation in some ambiguous driving and observing activity. Conduct less innocuous has been held insufficient to constitute probable cause. (E. g., Sibron v. New York (1968) 392 U.S. 40, 62-63, 88 S.Ct. 1889, 20 L.Ed.2d 917; United States v. Di Re (1948) 332 U.S. 581," }, { "docid": "19104498", "title": "", "text": "weekends when fewer police were around. The sources also stated that the narcotics were stored in a safe deposit box in an unidentified bank. DEA agents watched Levy’s Brooklyn gas station and identified vehicles entering the premises as being registered to suspected narcotics dealers. In addition, the activities of the drivers of the vehicles and station personnel did not appear to be related to the purchase of petroleum products or mechanical repairs or maintenance. Levy was also seen conversing with known drug users. On Monday, February 22, 1982, several DEA agents, including Agent Kibble, observed Levy hurriedly leaving the gas station and driving to a nearby branch of the Metropolitan Savings Bank. The bank closed before Levy’s arrival and his attempts to enter were fruitless. The following morning bank authorities informed Kibble that Levy had access to two of their safe deposit boxes. On Friday, February 26, agents observed Levy entering the bank shortly before closing time and going to the safe deposit box area. Levy was wearing a heavy outer coat and nothing was seen protruding from his pockets. When Levy emerged from the bank, Agent Kibble noticed “a brown paper bag which was protruding from [Levy’s] right pocket.” Levy walked across the street where he was approached by Kibble and Special Agent Higgs. Kibble drew his weapon and held up his DEA shield. Levy reached for the bag and Kibble ordered him to “freeze” and raise his hands. Kibble then walked Levy to a wall, had him stand spread-eagle, patted him down for weapons and removed the protruding brown paper bag. Kibble opened the bag and saw a powdered substance packaged in plastic “baggies.” Levy was informed that he was under arrest and advised of his constitutional rights. Laboratory analysis confirmed that the powder was heroin. Levy conceded that the agents had probable cause to arrest him, but nevertheless moved to suppress, the heroin on the grounds that (1) his arrest was unlawful because the agents failed to obtain an arrest warrant when they had ample opportunity to do so, and (2) he had been illegally searched without" }, { "docid": "23344995", "title": "", "text": "or danger of imminent destruction of any known evidence. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). No apparent offense was observed being committed in the presence of these officers which would have justified the search. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) . The contraband was certainly not in “plain view.” See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). See also, generally, Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Thus, the only exception to the warrant rule under which the search of this defendant can be justified is the protective “frisk” for weapons authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The patting down of a person— or as it is commonly known, frisking- — and the investigatory “stop” have been legally differentiated from an arrest and “a full blown search for evidence of crime.” Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 68, 88 S.Ct. 1889, 1905, 20 L.Ed.2d 917 (1968) (concurring opinion). What appears to be required is a showing of some appreciable probability of danger created by someone with a weapon. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). This probability is less than that required to arrest but more than that which would support a surmise or hunch. Speaking of the higher arrest standard, the Supreme Court in Henry pointed out: “[E]vidence required to establish guilt is not necessary. * * * On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959)." }, { "docid": "10352634", "title": "", "text": "719 (2d Cir. 1976). It does not matter whether the arrest is ultimately found justified, for before making an arrest the police need not conduct a trial, Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974); Lathers v. United States, 396 F.2d 524, 532 (5th Cir. 1968), or assemble evidence sufficient to establish guilt. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Chaplin, 427 F.2d 14, 15 (2d Cir.), cert. denied, 400 U.S. 830, 91 S.Ct. 59, 27 L.Ed.2d 60 (1970). The thoughts and actions of the police officers are not, in other words, to be judged with the “full clarity of hindsight.” United States v. Tramunti, 377 F.Supp. 1, 5 (S.D.N.Y.1974), aff’d, 513 F.2d 1087 (2d Cir. 1975). Logically, in order to determine whether Von Werne had probable cause to arrest Barnes, and therefore whether Dunphy had probable cause to search the Mercedes, one must first inquire as to when the arrest of Barnes occurred. See Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Rios v. United States, 364 U.S. 253, 261-62, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). An arrest is not effected merely by stopping and frisking a person. See United States ex rel. Griffin v. Vincent, 359 F.Supp. 1072, 1075-76 (S.D.N.Y.1973); United States ex rel. Spero v. McKendrick, 266 F.Supp. 718, 724 (S.D.N.Y.1967), aff’d, 409 F.2d 181 (2d Cir. 1969). Rather, there must be an “actual or constructive seizure or detention” which is meant to be an arrest of the person and which would cause a reasonable man, innocent of any crime, to believe that he had been arrested. See Hicks v. United States, 127 U.S.App.D.C. 209, 382 F.2d 158, 161 (1967) (Burger, J.), quoting Jenkins v. United States, 161 F.2d 99, 101 (10th Cir. 1947); see also United States v. Thomas, 250 F.Supp. 771, 781 (S.D.N.Y.1966), aff’d, 396 F.2d 310 (1968); United States v. Bonanno, 180 F.Supp. 71, 78 (S.D.N.Y.1960) (Kaufman, J.), rev’d on other grounds sub nom. United States v. Buffalino, 285 F.2d 408 (1960)." }, { "docid": "19104504", "title": "", "text": "a person is restrained and his freedom of movement is restricted. See Henry v. United States, 361 U.S. 98, 102-03, 80 S.Ct. 168, 171-72, 4 L.Ed.2d 134 (1959); United States v. Skinner, 412 F.2d 98, 103 (8th Cir.), cert. denied, 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (1969); United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969). Without question, Levy was restrained and his freedom of movement was restricted before Agent Kibble removed the bag from his pocket. Therefore, the district court’s finding that arrest preceded the search is not clearly erroneous. Appellant next argues that an arresting officer is constitutionally required to procure an arrest warrant if there is ample time to do so. This argument has been rejected by the Supreme Court, United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 827, 46 L.Ed.2d 598 (1976). While a warrant may be preferable, it is not a constitutional requirement. See United States v. Rollins, 522 F.2d 160, 167 (2d Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976); United States ex rel. LaBelle v. LaVallee, 517 F.2d 750, 754-55 (2d Cir.1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 803, 46 L.Ed.2d 655 (1976); United States v. Fernandez, 480 F.2d 726, 740 n. 20 (2d Cir. 1973). Thus, the seizure of the heroin was incident to a valid arrest and was admissible against Levy. 2. Distribution Conviction A. Background Levy’s arrest for distribution of heroin stemmed from the investigation of the narcotic trafficking activities of Avi Elimalich. Agent Kibble began an investigation of Elimalich in October 1982 and utilized the assistance of two informants, Dilson and Sammy Assraf. Assraf introduced Elima-lich to Dilson, who informed Elimalich that he wished to buy some heroin. Elimalich agreed to provide a sample worth $250 for which Dilson would pay later. At a subsequent meeting, Dilson paid for the sample and requested better quality heroin. Eli-malich replied that he still had twelve ounces of heroin to sell but that he" }, { "docid": "12517347", "title": "", "text": "relied on]; United States v. Chapman, 5th Cir., 413 F.2d 440, cert. denied, 396 U.S. 903, 90 S.Ct. 217, 24 L.Ed.2d 180 (196) [informer’s tip plus past record of and reputation for dealing in non-tax-paid whiskey]; United States v. Cothren, 4th Cir. 1967, 386 F.2d 364, cert. denied 390 U.S. 949, 88 S.Ct. 1038, 19 L.Ed.2d 1139 (1968) [informer’s tip, odor of cooking mash emanating from dwelling, defendant’s past record of and reputation for dealing in illicit whiskey, and observation of whiskey jugs being carried in and out of dwelling]; United States v. Price, 2d Cir., 345 F.2d 256, 259, cert. denied, 382 U.S. 949, 86 S.Ct. 404, 15 L.Ed.2d 357 (1965) [smell of mash cooking and informer’s tip]. See also Fernandez v. United States, 9th Cir. 1963, 321 F.2d 283, 287, at n. 8. Once the existence of probable cause to support a warrantless arrest is established, the search of appellant’s ear will be valid, if in fact, an arrest has taken place at the time the search is conducted. We find that we must agree that Birdsong was in fact under arrest the moment the agents initially interrupted his liberty — and that occurred when they ordered him out of his car, surrounded him, and took the key from the ignition. The case law makes it plain that Birdsong was under arrest at this moment, even though the formal words of arrest had not yet been uttered. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); United States v. Boston, 2d Cir., 330 F.2d 937, cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964). “That the search and seizure may have preceded the formal announcement of the arrest by a few moments is not vital.” United States v. Boston, 330 F.2d at 939. See also Lovelace v. United States, 5th Cir. 1966, 357 F.2d 306, 310; Holt v. Simpson, 7th Cir. 1965, 340 F.2d 853, 856; Fernandez v. United States, supra, 321 F.2d at 287, n. 8. And it is well established that a search incident to an" } ]

[ { "docid": "22745610", "title": "", "text": "the applicant meet a higher burden of proof than is required of an asylum applicant. The BIA therefore refused to apply Sael’s disfavored group analysis to Wakkary’s withholding and CAT claims. Wakkary timely filed a petition for review with this Court, arguing that the BIA erred (1) in holding that his asylum claim was time-barred; (2) in rejecting his claim for withholding of removal, either (a) because the record compels a finding that he suffered past persecution or, in the alternative, (b) because he faces a clear probability of future persecution in light of the widespread mistreatment of Chinese and Christians and his own past experiences; and (3) in rejecting his CAT claim. We have jurisdiction over his petition for review under 8 U.S.C. § 1252. II. ANALYSIS In cases in which, as here, the BIA “adopt[s] and affirm[s]” the decision of the IJ but also adds its own analysis, the scope of our review extends to the decisions of both the IJ and the BIA. Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000). We review the agency’s legal determinations de novo, and factual findings for substantial evidence. Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 n. 1 (9th Cir.2007). Because the IJ found Wakkary credible, we treat Wakkary’s testimony as true. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir.2004). A. Wakkary’s Asylum Claim The INA generally requires that an alien file for asylum within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). The INA allows for exceptions, however, for aliens who show “extraordinary circumstances relating to the delay in filing.” Id. § 1158(a)(2)(D). According to the applicable regulations, one example of such an “extraordinary circumstance[ ]” is when an “applicant maintained ... lawful immigrant or nonimmigrant status ... until a reasonable period before the filing of the asylum application.” 8 C.F.R. § 208.4(a)(5)(iv). Wakkary was residing in this country on a valid religious worker visa until April 11, 2002. Under the applicable regulation, his maintenance of such status qualifies as an “extraordinary circumstance[.]” See 8 C.F.R. § 208.4(a)(5). Nevertheless, noting that Wakkary submitted" } ]

[ { "docid": "22085947", "title": "", "text": "a specification of who is to make the decision, rather than a characterization of that decision itself.” Ramadan, 479 F.3d at 655 (emphasis in original). But see Husyev, 528 F.3d at 1179-80 (noting that Ramadan creates tension with Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006), in concluding section 106 of the Real ID Act does not restore our jurisdiction over discretionary determinations by the agency, but declining to resolve the question). . The regulation further provides that \"an F-1 student is admitted for duration of status. Duration of status is defined as the time during which an F-l student is pursuing a full course of study at an educational institution .... The student is considered to be maintaining status if he or she is making normal progress toward completing a course of study.’’ Id. § 214.2(f)(5)(i) (emphasis added). . In the typical case, a determination by the agency that a petitioner’s lack of credibility renders him ineligible for asylum will also support a determination that the petitioner is ineligible for withholding of removal. See, e.g., Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). In this case, however, the BIA denied Dhital’s application for asylum solely on the grounds discussed above, see supra Part II, and considered Dhital's credibility only for purposes of withholding of removal. O’SCANNLAIN, Circuit Judge, specially concurring: I join in the court’s decision because it faithfully applies our precedent in Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam), reh’g en banc denied, 504 F.3d 973 (9th Cir.2007), as extended by Husyev v. Mukasey, 528 F.3d 1172 (9th Cir.2008), to conclude that the Real ID Act of 2005 provides us with jurisdiction to review the Board of Immigration Appeals’ determination that Dhital’s second application for asylum was untimely and not excused by extraordinary circumstances. As I have previously explained, however, see 504 F.3d at 973-78 (O’Scannlain, J., dissenting from denial of rehearing en banc), I continue to believe that Ramadan was wrongly decided. The Immigration and Nationality Act (“INA”) authorizes immigration officials to accept an untimely application for asylum if “changed” or “extraordinary”" }, { "docid": "22624367", "title": "", "text": "BYBEE, Circuit Judge. Marjorie Konda Lolong petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying her application for asylum and granting her voluntary departure. In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.2004), we held that we lack jurisdiction to review the BIA’s decisions in such cases because the BIA lacks the authority to issue final orders of departure, and the Immigration and Naturalization Act (“INA”) conditions our jurisdiction on the existence of such an order. Until recently, a petitioner in Lolong’s position could still seek habeas relief in district court, but in the REAL ID Act of 2005, Congress eliminated this form of relief in immigration cases. See 8 U.S.C. § 1252(a)(5). Together with our prior decisions, this statutory change leaves petitioners in Lolong’s position with no opportunity to obtain judicial review of the BIA’s disposition of their cases. We reheard this case en banc to revisit our prior jurisprudence because this lack of judicial review raises serious constitutional concerns. Having decided that our prior interpretation of the BIA’s power under the INA was overly narrow, we overrule Molina-Camacho and determine that we do have jurisdiction to review the BIA’s decision in such cases. We further conclude that substantial evidence supports the BIA’s denial of Lolong’s asylum claim. Accordingly, we deny the petition for review. I Marjorie Lolong is an Indonesian woman of ethnic Chinese descent. She is also a Christian. Lolong first entered the United States as a student in 1990. In May 1998, when she was still a student in this country, Indonesia experienced the worst anti-Chinese rioting in its history. She applied for asylum in December 1998, after learning that one of her friends had been raped and her uncle had been severely beaten during the violence. During her removal proceedings, Lolong conceded re-movability, and the Immigration Judge (“U”) determined that “removability has been established by clear and convincing evidence.” However, in November 2000, the IJ held that Lolong was eligible for asylum, finding her testimony fully credible and her fear of future persecution to be both subjectively genuine and objectively" }, { "docid": "22085948", "title": "", "text": "See, e.g., Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). In this case, however, the BIA denied Dhital’s application for asylum solely on the grounds discussed above, see supra Part II, and considered Dhital's credibility only for purposes of withholding of removal. O’SCANNLAIN, Circuit Judge, specially concurring: I join in the court’s decision because it faithfully applies our precedent in Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam), reh’g en banc denied, 504 F.3d 973 (9th Cir.2007), as extended by Husyev v. Mukasey, 528 F.3d 1172 (9th Cir.2008), to conclude that the Real ID Act of 2005 provides us with jurisdiction to review the Board of Immigration Appeals’ determination that Dhital’s second application for asylum was untimely and not excused by extraordinary circumstances. As I have previously explained, however, see 504 F.3d at 973-78 (O’Scannlain, J., dissenting from denial of rehearing en banc), I continue to believe that Ramadan was wrongly decided. The Immigration and Nationality Act (“INA”) authorizes immigration officials to accept an untimely application for asylum if “changed” or “extraordinary” circumstances justify the delay. 8 U.S.C. § 1158(a)(2)(D) (stating that an untimely “application for asylum of an alien may be considered ... if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application” (emphasis added)). The Act plainly commits the decision whether such circumstances are present to the agency’s discretion, providing that “[n]o court shall have jurisdiction to review any [such] determination.” Id. § 1158(a)(3). The Real ID Act of 2005 created an exception to certain barriers to judicial review imposed by the INA, providing that “constitutional claims and questions of law” remain subject to our review. Id. § 1252(a)(2)(D). In Ramadan, we held that this enactment restored our jurisdiction over the agency’s application of the changed circumstances exception to the asylum filing deadline in that case, reasoning that it presented a “mixed question[ ] of fact and law” that fell within the “questions of law” over which the Real" }, { "docid": "22784767", "title": "", "text": "CAT claim. See, e.g., Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir.2008) (concluding that the petitioner waived CAT claim by failing to advance any arguments in favor of relief); Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (concluding that petitioner waived a claim that was referenced in the statement of the case, but not discussed in the body of the opening brief). . Furthermore, neither Sael nor Lolong I materially affected petitioners’ eligibility for asylum. The panel’s decision in Lolong I is not precedential because it was vacated, reheard en banc, and not adopted in Lolong II. See 9th Cir. R. 35-3, Advisory Note 3(\"The three-judge panel opinion shall not be cited as precedent ..., except to the extent adopted by the en banc court.”). Moreover, the holding in Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), that the ethnic Chinese minority in Indonesia are a disfavored group, does not apply here because petitioners are not ethnically Chinese. In addition, disfavored group analysis existed well before we decided Sael. See Wakkary v. Holder, 558 F.3d 1049, 1062-63 (9th Cir.2009) (reviewing the development of \"disfavored group” analysis beginning with Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994)). Therefore, Sael does not constitute a changed circumstance that materially affects petitioners’ eligibility for asylum. . Two avenues are available for establishing eligibility for withholding of removal: (1) past persecution, which creates a presumption of eligibility for withholding of removal; and (2) a clear probability of future persecution. See 8 C.F.R. § 208.16(b); see also Al-Harbi v. INS, 242 F.3d 882, 888-89 (9th Cir.2001) (discussing the \"clear probability standard” for withholding of removal). A clear probability of future persecution may be established in one of two ways. First, the applicant may demonstrate that it is more likely than not that she will be singled out individually for persecution on account of a protected ground. See 8 C.F.R. § 1208.16(b)(2). Second, in the absence of any individualized targeting, the applicant may demonstrate that she is a member of a group that is subject to a \"pattern or practice of persecution” in" }, { "docid": "22437006", "title": "", "text": "by the Indonesian government or any of its agents on account of his religious beliefs. Consistent with these findings, the IJ denied the cross-application for asylum, withholding of removal, and protection under CAT; ordered the petitioner removed; and designated Indonesia as the country of removal. The BIA upheld the IJ’s decision, concluding that the petitioner had failed to establish past persecution, a well-founded fear of future persecution, or a sufficient likelihood that he would be subjected to torture upon his return to Indonesia. This timely petition for judicial review followed. II. Discussion We start—and end'—with the denial of the petitioner’s application for asylum. In reviewing the BIA’s denial of an asylum application, we examine its findings of fact, including its credibility determinations, to ascertain whether those findings are supported by substantial evidence in the record. See Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005); Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). Under this highly deferential standard, we must accept the BIA’s findings so long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Absent an error of law, we can overrule the BIA’s ensuing decision only if the evidence “points unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). The petitioner bears the burden of establishing that he qualifies for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). To qualify as a refugee within the meaning of the Immigration and Nationality Act, an asylum seeker must show that he cannot 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.” 8 U.S.C. § 1101(a)(42)(A). Upon a satisfactory showing of past persecution, a rebuttable presumption arises that a petitioner’s fear of future persecution is well-founded. Makhoul, 387 F.3d at 79. The Immigration and Nationality Act provides no precise definition of “persecution.” The" }, { "docid": "22085937", "title": "", "text": "Cir.2008) (declining to remand an identical claim only because the petitioner failed to exhaust such claim before the BIA). If the BIA’s frivolousness determination were the sole basis on which it denied Dhital’s asylum application, a remand would also be required here. However, because the BIA articulated an alternative ground for its decision, we turn to that ground to determine whether it is sufficient to support the BIA’s decision. B The INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, requires an asylum application to be filed “within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). There are two exceptions to this rule: if “the alien demonstrates to the satisfaction of the Attorney General either [1] the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or [2] extraordinary circumstances relating to the delay in filing an application,” the agency may grant his application even if it is filed after the one-year deadline. Id. § 1158(a)(2)(D). Dhital did not submit his second asylum application until six years after he arrived in the United States, and the BIA found no “extraordinary circumstances” to justify the delay. 1 We have jurisdiction to review the BIA’s ruling on this question. Although 8 U.S.C. § 1158(a)(3) provides that “[n]o court shall have jurisdiction to review any determination of the Attorney General” relating to the one-year filing deadline, section 106 of the Real ID Act of 2005 restored our jurisdiction over “constitutional claims or questions of law” raised in a petition for review. Id. § 1252(a)(2)(D). As we held in Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam), and Husyev v. Mukasey, 528 F.3d 1172 (9th Cir.2008), such “questions of law” include the agency’s application of the changed and extraordinary circumstances exceptions to undisputed facts. Ramadan, 479 F.3d at 650 (holding that the Board’s application of the changed circumstances exception to undisputed facts presents a “mixed question[ ] of fact and law” subject to our review under section 106 of the Real ID Act); Husyev, 528" }, { "docid": "1417569", "title": "", "text": "was able to make decisions for herself’ and that the reason she failed to file her application was “because she did not have the requisite funds to pay for the services of counsel to help her file that application.” Gasparyan appealed the denial of asylum. The Board dismissed her appeal. In so doing, the Board reasoned, inter alia, that although the forensic psychologist testified that Gasparyan might have trouble with a complex application process, he “earlier indicated that her primary reasons for not applying for asylum were a lack of funds and her inability to speak English.” Thus, the Board held that Gasparyan failed to present extraordinary circumstances excusing her untimely asylum application. II. Discussion Before addressing the merits of Gasparyan’s petition, we must first determine whether we have jurisdiction to review the Board’s extraordinary circumstances determination. Under the REAL ID Act of 2005, Pub.L. No. 109-13, div. B, § 106(a)(l)(A)(iii), 119 Stat. 231, 310 (2005) (codified in scattered sections of 8 U.S.C.), we have jurisdiction to review an extraordinary circumstances determination only with regard to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D); Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir.2008). Questions of law include pure questions of law as well as “mixed questions of law and fact.” Husyev, 528 F.3d at 1178-79. Mixed questions of law and fact refer to the application of law to “undisputed facts.” Id. A. Jurisdiction to Review “Extraordinary Circumstances” Determination Based on Disputed Facts To excuse her untimely asylum application, Gasparyan must establish that her psychiatric problems constituted extraordinary circumstances “directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5). See Singh v. Holder, 656 F.3d 1047, 1054-56 (9th Cir. 2011) (discussing the “directly related” requirement and noting that “[t]he relevant inquiry is why [petitioner] delayed [her] application”). Gasparyan contends that “it can hardly be disputed” that her psychiatric problems were directly related to her failure to file for asylum within the one-year deadline. The record, however, establishes otherwise. Gasparyan testified before the immigration judge that she" }, { "docid": "22784766", "title": "", "text": "We affirm the BIA and deny the petition with respect to all other applications for relief. Costs on appeal awarded to petitioners. PETITION GRANTED IN PART, DENIED IN PART, AND REMANDED. . \"Special Registration” refers to the National Security Entry-Exit Registration System (“NSEERS”). Following September 11, 2001, the Attorney General instituted NSEERS, which required the collection of data from aliens upon entry and periodic registration of certain aliens, from majority-Muslim states and North Korea, present in the United States. See Rajah v. Mukasey, 544 F.3d 427, 433 (2d Cir.2008); see also 8 C.F.R. § 264.1(f)(4) (2003) (enabling regulation for the NSEERS program). It appears that NSEERS was used to identify undocumented immigrants and remove those who comply. . Neither the IJ nor the BIA made an adverse credibility finding. Accordingly, this court must take petitioners' testimony as true. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004). . In their opening brief, petitioners failed to raise any issues or advance any arguments in favor of relief under CAT. Accordingly, petitioners waived review of their CAT claim. See, e.g., Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir.2008) (concluding that the petitioner waived CAT claim by failing to advance any arguments in favor of relief); Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (concluding that petitioner waived a claim that was referenced in the statement of the case, but not discussed in the body of the opening brief). . Furthermore, neither Sael nor Lolong I materially affected petitioners’ eligibility for asylum. The panel’s decision in Lolong I is not precedential because it was vacated, reheard en banc, and not adopted in Lolong II. See 9th Cir. R. 35-3, Advisory Note 3(\"The three-judge panel opinion shall not be cited as precedent ..., except to the extent adopted by the en banc court.”). Moreover, the holding in Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), that the ethnic Chinese minority in Indonesia are a disfavored group, does not apply here because petitioners are not ethnically Chinese. In addition, disfavored group analysis existed well before we decided Sael. See Wakkary v." }, { "docid": "3936576", "title": "", "text": "judge denied Firmans-jah’s request for asylum on the ground that she had firmly resettled in Singapore prior to entering the United States. The immigration judge also denied her request for withholding of removal, reasoning that she had not established a clear probability that she would face persecution if returned to Indonesia. Her request for voluntary departure was granted, with an alternative order of removal to Indonesia. Firmans-jah appealed the immigration judge’s decision to the Board of Immigration Appeals, which summarily affirmed the immigration judge’s decision without opinion. II. ANALYSIS Firmansjah raises two issues in her petition for review. First, she contends that the immigration judge erred when he determined that she had firmly resettled in Singapore prior to her arrival in the United States. In addition, she maintains that the immigration judge’s finding that she was not entitled to withholding of removal was not supported by substantial evidence. Where, as here, the Board of Immigration Appeals affirms the immigration judge’s decision without opinion, we review the decision of the immigration judge as the “final agency determination.” Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th Cir.2004). A. Asylum To be eligible for a discretionary grant of asylum, an applicant must establish that she is a “refugee” within the meaning of the Immigration and Nationality Act. 8 U.S.C. § 1158(b)(1); Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.2005). The Act defines a “refugee” as one who is unable or unwilling 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 petitioner carries the burden of establishing eligibility for asylum. Jamal-Daoud, 403 F.3d at 922; 8 C.F.R. § 208.13(a). Although it has not always been the case, under the current statute, an alien is not eligible for asylum if she was “firmly resettled in another country prior to arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi); see Abdille v. Ashcroft, 242 F.3d 477, 483 n. 4 (3d Cir.2001) (discussing history of firm resettlement and noting that" }, { "docid": "4036198", "title": "", "text": "OPINION IKUTA, Circuit Judge: Osama AI Ramahi and Nisreen AI Sharif petition for review of the decision by the Board of Immigration Appeals (BIA) that extraordinary circumstances do not excuse their untimely applications for asylum. We deny the petition because substantial evidence supports the BIA’s conclusion that, even assuming the petitioners could demonstrate extraordinary circumstances, they did not file their applications within a “reasonable period given those circumstances.” 8 C.F.R. § 1208.4(a)(5). I We begin by examining the statutory framework that governs the timeliness of asylum applications. To qualify for asylum, an alien must demonstrate by clear and convincing evidence that the alien’s application for asylum was “filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B); see Ramadan v. Gonzales, 479 F.3d 646, 649 (9th Cir.2007) (per curiam). There is a statutory exception to this one-year filing deadline: an alien may file a late application by demonstrating to the satisfaction of the Attorney General either (1) “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum” or (2) “extraordinary circumstances relating to the delay in filing.” 8 U.S.C. § 1158(a)(2)(D); see Ramadan, 479 F.3d at 649-50. The applicable regulations provide a non-exhaustive list of qualifying “extraordinary circumstances,” 8 C.F.R. § 1208.4(a)(5), which includes “maintain[ing] ... lawful immigrant or nonimmigrant status ... until a reasonable period before the filing of the asylum application.” 8 C.F.R. § 1208.4(a)(5)(iv); see also Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). If an alien successfully demonstrates the existence of extraordinary circumstances, the alien must then demonstrate that the asylum application was filed within a “reasonable period given those circumstances.” 8 C.F.R. § 1208.4(a)(5); see Singh v. Holder, 656 F.3d 1047, 1052 (9th Cir.2011). Therefore, an alien who claims the extraordinary circumstance of maintenance of lawful status, see § 1208.4(a)(5)(iv), must show that “his delay in filing was ‘reasonable under the circumstances,’ ” Wakkary, 558 F.3d at 1057, as “determined on the basis of all the factual circumstances of the case.” Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th Cir.2008); see also" }, { "docid": "22784755", "title": "", "text": "must file her application within one year after arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The limitations period will be tolled if the applicant can establish changed circumstances that materially affect her eligibility for asylum. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)®. Contrary to the government’s argument, we have jurisdiction to review an agency’s changed circumstances determination. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) (holding that the Real ID Act restored jurisdiction over the “changed circumstances” question because this question involved the application of a statutory standard to undisputed facts). Petitioners argue that Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), and Lolong v. Gonzales, 400 F.3d 1215 (9th Cir.2005) (“Lolong I”), rev’d, 484 F.3d 1173 (9th Cir.2007) (en banc) (“Lolong II”), constituted changed circumstances because they changed United States law in a way that materially affects their eligibility for asylum. 8 C.F.R. § 208.4(a)(4)(i)(B). We review the IJ’s changed circumstances determination for substantial evidence. See Ramadan, 479 F.3d at 657. Petitioners’ argument fails because both Sael and Lo-long were decided after petitioners filed their asylum applications. Accordingly, those decisions could not have tolled the one-year statute of limitations. We affirm the IJ’s denial of petitioners’ asylum application as untimely. IV. WITHHOLDING OF REMOVAL Unlike asylum, there is no statutory time limit for filing a withholding application. Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir.2004) (citing 8 U.S.C. § 1231(b)(3)). Accordingly, petitioners’ application for withholding of removal is not time-barred. Petitioners argue that the BIA erred by failing to apply disfavored group analysis to their withholding claim because Christians are a disfavored group in Indonesia. We agree and remand to the BIA to use the disfavored group analysis in determining whether petitioners are entitled to withholding of removal. A. Christians Are a Disfavored Group in Indonesia A “disfavored group” is “a group of individuals in a certain country or part of a country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted” but who are “not threatened by a" }, { "docid": "22784753", "title": "", "text": "and Silitonga, charging them with removability for overstaying their visas. Tampubolon and Silitonga conceded removability and applied for relief from removal, including cancellation of removal, asylum, withholding of removal, and protection under CAT. The IJ denied all applications for relief. The IJ denied petitioners’ application for asylum because they failed to file their applications within one year of arrival, and also failed to demonstrate changed circumstances. The IJ denied petitioners’ application for withholding of removal because neither had suffered past persecution and both had similarly situated siblings living in Indonesia who had not experienced problems practicing their Christian faith. The IJ denied petitioners’ application for cancellation of removal because they failed to demonstrate that removal would result in exceptional and extremely unusual hardship to their two U.S. citizen daughters. The BIA adopted and affirmed the decision of the IJ, citing Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994). Petitioners timely petitioned for review. We have ju risdiction over the petition pursuant to 8 U.S.C. § 1252(a). II. STANDARD OF REVIEW Where, as here, the BIA cites its decision in Burbano, and does not express disagreement with any part of the IJ’s decision, we review the IJ’s decision as if it were the BIA’s decision. See Cinapian v. Holder, 567 F.3d 1067, 1073(9th Cir.2009). The BIA’s determination that petitioners have not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. See, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). Under the substantial evidence standard, the BIA’s determinations will be upheld “if the decision is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir.2008) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005) (en banc)). Reversal, however, is appropriate when “the evidence in the record compels a reasonable factfinder to conclude that the [BIA’s] decision is incorrect.” Id. Purely legal questions, including jurisdictional questions, are reviewed de novo. See Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir.2010). III. ASYLUM To qualify for asylum, an applicant" }, { "docid": "22784754", "title": "", "text": "the BIA cites its decision in Burbano, and does not express disagreement with any part of the IJ’s decision, we review the IJ’s decision as if it were the BIA’s decision. See Cinapian v. Holder, 567 F.3d 1067, 1073(9th Cir.2009). The BIA’s determination that petitioners have not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. See, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). Under the substantial evidence standard, the BIA’s determinations will be upheld “if the decision is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir.2008) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005) (en banc)). Reversal, however, is appropriate when “the evidence in the record compels a reasonable factfinder to conclude that the [BIA’s] decision is incorrect.” Id. Purely legal questions, including jurisdictional questions, are reviewed de novo. See Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir.2010). III. ASYLUM To qualify for asylum, an applicant must file her application within one year after arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The limitations period will be tolled if the applicant can establish changed circumstances that materially affect her eligibility for asylum. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)®. Contrary to the government’s argument, we have jurisdiction to review an agency’s changed circumstances determination. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) (holding that the Real ID Act restored jurisdiction over the “changed circumstances” question because this question involved the application of a statutory standard to undisputed facts). Petitioners argue that Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), and Lolong v. Gonzales, 400 F.3d 1215 (9th Cir.2005) (“Lolong I”), rev’d, 484 F.3d 1173 (9th Cir.2007) (en banc) (“Lolong II”), constituted changed circumstances because they changed United States law in a way that materially affects their eligibility for asylum. 8 C.F.R. § 208.4(a)(4)(i)(B). We review the IJ’s changed circumstances determination for substantial evidence. See Ramadan, 479 F.3d at 657. Petitioners’ argument fails because both Sael" }, { "docid": "22405336", "title": "", "text": "to appear before an IJ on September 9, 2005. At her hearing before the IJ, petitioner conceded her removability but requested asylum, withholding of removal, CAT protection, and voluntary departure. On January 30, 2006, after hearing petitioner’s testimony in support of her application, the IJ denied the relief sought. That decision was affirmed by the BIA on September 28, 2007, whereupon petitioner timely filed for review by this Court. I. Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). II. Santoso, relying on Mufied v. Mukasey, argues primarily that the IJ and the BIA did not adequately consider whether there exists a pattern or practice of persecution of ethnic Chinese or Catholics in Indonesia. See 508 F.3d 88, 91 (2d Cir.2007) (remanding where “[njeither the IJ nor the BIA appears to have considered Mufied’s claim that there is a pattern or practice of persecution of Christians in Indonesia”). Unlike Mufied, however, in Santoso’s case, the BIA explicitly noted that “[t]he discrimination and sporadic violence in various parts of Indonesia, as discussed by the Immigration Judge, do not establish that there is a pattern or practice of persecution against individuals similarly situated to the respondent.” J.A. at 3; see Mufied, 508 F.3d at 91 (noting that the BIA failed to supplement the IJ’s discussion of persecution and “appeared to base its denial of Mufied’s appeal on its finding that he had personally ‘experienced few problems’ ”). The fact that the BIA cited to the statute governing generally the burden of proof for withholding of removal," }, { "docid": "22405335", "title": "", "text": "PER CURIAM: Petitioner, Merlinda Santoso (“petitioner” or “Santoso”), a native and citizen of Indonesia, seeks review of a September 28, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the January 30, 2006 decision of an immigration judge (“IJ”) denying Santoso’s application for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure. In her petition to this Court, Santoso argues that the BIA and the IJ failed adequately to address her claim that there exists a pattern or practice of persecution of ethnic Chinese and Catholics in Indonesia. BACKGROUND Petitioner arrived in the United States on or about August 2,1999, with authorization to remain for a temporary period not to exceed six moths. On May 23, 2005, nearly six years after her arrival, petitioner filed an application for asylum, withholding of removal, and relief under the CAT. Shortly thereafter, the Department of Homeland Security charged her with removal pursuant to 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for a time longer than permitted and ordered her to appear before an IJ on September 9, 2005. At her hearing before the IJ, petitioner conceded her removability but requested asylum, withholding of removal, CAT protection, and voluntary departure. On January 30, 2006, after hearing petitioner’s testimony in support of her application, the IJ denied the relief sought. That decision was affirmed by the BIA on September 28, 2007, whereupon petitioner timely filed for review by this Court. I. Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008)." }, { "docid": "22085938", "title": "", "text": "not submit his second asylum application until six years after he arrived in the United States, and the BIA found no “extraordinary circumstances” to justify the delay. 1 We have jurisdiction to review the BIA’s ruling on this question. Although 8 U.S.C. § 1158(a)(3) provides that “[n]o court shall have jurisdiction to review any determination of the Attorney General” relating to the one-year filing deadline, section 106 of the Real ID Act of 2005 restored our jurisdiction over “constitutional claims or questions of law” raised in a petition for review. Id. § 1252(a)(2)(D). As we held in Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam), and Husyev v. Mukasey, 528 F.3d 1172 (9th Cir.2008), such “questions of law” include the agency’s application of the changed and extraordinary circumstances exceptions to undisputed facts. Ramadan, 479 F.3d at 650 (holding that the Board’s application of the changed circumstances exception to undisputed facts presents a “mixed question[ ] of fact and law” subject to our review under section 106 of the Real ID Act); Husyev, 528 F.3d at 1178-79 (holding the same with respect to the extraordinary circumstances exception); see Sillah v. Mukasey, 519 F.3d 1042, 1043-44 (9th Cir.2008) (per curiam) (holding that we lack jurisdiction to review the Board’s timeliness determination where the petitioner’s arrival date was in dispute). Here, the date of Dhital’s arrival and the date he filed his second asylum application are not in dispute. While the parties disagree over the date on which his lawful nonimmigrant status expired, the outcome of this legal argument is not a factual dispute that affects our jurisdiction to review this claim. Thus, we turn to the merits of the BIA’s “extraordinary circumstances” determination. 2 The applicable regulation provides a nonexclusive list of “extraordinary circumstances” that excuse such an untimely filing, including cases in which “[t]he applicant maintained ... lawful immigrant or nonimmigrant status ... until a reasonable period before the filing of the asylum application.” 8 C.F.R. § 208.4(a)(5)(iv) (emphasis added). Dhital argues that he fits within this category because he maintained lawful non-immigrant status from his arrival in the" }, { "docid": "23259750", "title": "", "text": "asylum application within 1 year of arriving in the United States” and that “[t]he record also supports the Immigration Judge’s adverse credibility and burden of proof findings.” As noted above, Zheng then filed a timely petition for review in this Court. ANALYSIS We have recently reiterated the relevant standards of review to be employed on this appeal: “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t. of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (alteration and internal quotation marks omitted). We review the agency’s legal conclusions de novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007), and its factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA 510 F.3d 377, 379 (2d Cir.2007). Pinto-Montoya v. Mukasey, 540 F.3d 126, 129 (2d Cir.2008) (per curiam). In order to be considered a refugee and therefore eligible for asylum, the INA provides that Zheng must show that he has suffered past persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion,” or that he has a well-founded fear of future persecution on such grounds should he be ordered to return to his native country. See 8 U.S.C. § 1101(a)(42). The statute further provides that an individual, such as Zheng, who alleges that he has engaged in “resistance to a coercive population control program” may be eligible for relief as one who has been persecuted, or will be persecuted, on account of his political opinion. Id.; see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir.2007) (en banc). Past persecution alone is “rarely sufficient in itself to entitle an applicant to asylum,” but it does “automatically give[ ] rise to a rebuttable presumption of a well-founded fear of future persecution.” Poradisova v. Gonzales, 420 F.3d 70, 78" }, { "docid": "22583005", "title": "", "text": "that he suffered persecution or had objectively reasonable grounds for fearing persecution: his fine did not constitute economic persecution, he had avoided harm for over eleven years after it was assessed, and his wife and two children had remained in China unharmed during the intervening period. He was ineligible for withholding of removal under the INA, the BIA concluded, because an applicant for withholding must sustain a higher burden than for asylum. See 8 U.S.C. § 1231(b)(3); Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Likewise, He had not met the standard for being eligible for withholding of removal under the CAT, because he had not shown that it was “more likely than not” that he would face torture if he were returned to China. 8 C.F.R. § 1208.16(c)(2). He filed a timely petition for review. II. Discussion Our review of the BIA’s determination that an applicant has not established eligibility for asylum is “highly deferential.” Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006). We will affirm the BIA’s decision if it is supported by substantial evidence and may only grant a petition for review “if the applicant shows that the evidence compels the conclusion that the asylum decision was incorrect.” Id. We are without jurisdiction to hear arguments that a petitioner has not exhausted by raising and arguing in his brief before the BIA. See 8 U.S.C. § 1252(d)(1); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc) (per curiam). A. Substantial evidence supports the BIA’s decision A reasonable factfinder would not be compelled to find either that He offered resistance to China’s one-child policy or that he suffered persecution. Therefore, He’s petition fails on each independent ground. 1. Resistance He argued to the BIA that he engaged in resistance to China’s coercive family planning program by refusing to pay all of the fíne he was assessed. The BIA rejected this argument on the ground that He’s partial payment of the fine did not constitute “other resistance.” We agree. He testified that he would have paid all the fine if he were able and that" }, { "docid": "21246858", "title": "", "text": "Gonzales, 424 F.3d 598, 607 n. 6 (7th Cir.2005); see also Lie v. Ashcroft, 396 F.3d 530, 538 n. 4 (3d Cir.2005) (declining to adopt the Ninth Circuit’s “disfavored group” analysis). Conclusion The denial of Ms. Kaharudin’s applications for asylum and withholding of removal was supported by substantial evidence. Therefore, we deny Ms. Kaharudin’s petition for review and affirm the order of the BIA. Petition Denied ORDER Affirmed . Ms. Kaharudin refers to these individuals as \"native Indonesians.” For ease of discussion, we shall do the same. . Ms. Kaharudin was seventeen years old when she arrived in the United States. She turned eighteen in December of 1998, before her visa expired and more than two years before applying for asylum. . Ms. Kaharudin does not challenge the denial of her request for CAT relief. . Ms. Kaharudin relies primarily upon the Fifth Circuit's decision in Eduard v. Ashcroft, 379 F.3d 182, 192 (5th Cir.2004), to support her \"pattern or practice” claim. In Eduard, the court concluded that persecution against Chinese Christians was so widespread in Indonesia as to constitute a \"pattern or practice” of persecution, such that the applicant for asylum was not required to show that he had been targeted personally. Id. at 192. However, in Eduard, the Fifth Circuit did not address the question of whether the Indonesian government was complicit in or unwilling or unable to prevent violence against ethnic Chinese Christians. As we already have stated, harm at the hands of private persons cannot constitute persecution without such a showing. We note also that each of the other circuits to address the issue has declined to find a pattern or practice of persecution of Christian Indonesians of Chinese descent. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007) (en banc) (holding that the petitioner had failed to demonstrate a pattern or practice of persecution of ethnic Chinese Christians because the Indonesian government did not perpetrate the discrimination and had \"taken concrete steps to suppress ethnic and religious violence”); Tolego v. Gonzales, 452 F.3d 763, 766 (8th Cir.2006) (noting the absence of evidence of acquiescence" }, { "docid": "22707544", "title": "", "text": "in this court was stayed pending our decision in Lolong v. Gonzales, 484 F.3d 1173 (9th Cir.2007) (en banc). . We held: Wakkary's personal experiences at the hands of native Indonesians — being beaten by youths and robbed of his sandals and pocket money in 1985 and 1990 (seventeen and twelve years, respectively, before he filed his asylum application), and being accosted by a threatening mob while his family was driving to Bible school in 1998 — are instances of discriminatory mistreatment. We cannot say, however, that a reasonable factfinder would be \"compel[led]'' to conclude that these experiences, without more, cumulatively amount to past persecution. Wakkary, 558 F.3d at 1059-60 (citations omitted) (alteration in original). . The disfavored group analysis in Wakkary addressed withholding of removal, rather than asylum, because the agency had determined that Wakkary’s application for asylum was untimely, and we remanded that issue to the agency to determine whether Wakkary had \"applied for asylum within a ‘reasonable period' as the regulations require.” 558 F.3d at 1059. . We noted: We too are well aware of the long history of ethnic and religious strife in Indonesia. See Sael, 386 F.3d at 925-27. However, the record supports the BIA’s conclusion that Lolong has not shown that the Indonesian government is unable or unwilling to control the perpetrators of this violence. As the BIA noted, the State Department’s Country Reports (“Country Reports”) indicated that \"the government of Indonesia has [] shown its general commitment to freedom of religion and its lack of institutional discrimination against the ethnic Chinese minority.” Beyond this general commitment, moreover, the record contains evidence suggesting that the government has taken concrete steps to suppress ethnic and religious violence and to encourage reconciliation between opposing groups. Id. at 1180-81 (footnote omitted). . Our holding that Halim has failed to make a compelling showing of persecution in support of his claim for asylum also requires that we deny his request for withholding of removal. See Zehatye, 453 F.3d at 1190 (noting that where an alien cannot establish eligibility for asylum, he will not qualify for withholding of removal," } ]

[ { "docid": "22722662", "title": "", "text": "that she indeed declined to participate in child abuse eases because she did not feel it was compatible to be both the therapist and investigator. DISCUSSION In determining whether reprisal for whist-leblowing activities occurred and whether corrective action is warranted, the Board is required by section 14 of the WPA, codified at 5 U.S.C. § 1221(e)(1)(A) & (B) (1994), to determine whether Ms. Kewley has shown by a preponderance of the evidence that the disclosure was “a contributing factor” in the agency’s personnel action. If the disclosure was a contributing factor, the burden of proof shifts to the agency. Then the AJ must determine whether the agency has proven by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure. See 5 U.S.C: § 1221(e). This court must affirm a Board decision unless the petitioner establishes under 5 U.S.C. § 7703(c) (1994) that it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without adherence to procedures required by law, rule, or regulation; or (3) unsupported by substantial evidence. See Koyen v. Office of Personnel Management, 973 F.2d 919, 922 (Fed.Cir.1992). I. Ms. Kewley argues that after finding the timing to be “reasonable,” the AJ may not lawfully consider evidence to rebut that finding because Congress has mandated that the burden of proof thereby shifts to the agency and that the agency must meet a higher standard of proof. She argues, therefore, that because the deciding official indisputably knew of the protected disclosure and the removal action was found to have occurred within a reasonable time of that disclosure, she per se met her statutory burden under section 1221(e)(1) to show, prima facie, that the disclosure was a contributing factor in the agency’s personnel action. The AJ, however, held otherwise. A. The relevant part of section 1221(e)(1) states that: The employee may demonstrate that the disclosure was a contributing factor in the personnel action through circumstantial evidence, such as evidence that— (A) the official taking the personnel aetion knew of the disclosure; and" } ]

[ { "docid": "22949244", "title": "", "text": "its initial decision. Marino appealed to the board. The administrative judge affirmed OPM’s denial of Marino’s request. See Marino v. Office of Pers. Mgmt., No. DA844E980317-I-1 (Dec. 7, 1998) (initial decision). The administrative judge concluded that Marino failed to prove by a preponderance of the evidence that his medical problems rendered him unable to perform useful and efficient service in his position. The administrative judge first found that the objective medical evidence does not support a finding that the medical problems are so severe as to be disabling. Second, he found that DLA provided, and Marino accepted, an accommodating position in the administrative office. While in the accommodating position, Marino provided useful and efficient service. Finally, the administrative judge determined that accommodation would have continued but for the termination of Marino’s position by the RIF. The initial decision became the final decision of the board on November 1, 1999. Discussion The scope of our review in an appeal from a decision of the board is limit ed. Specifically, we must affirm the decision unless we find it to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994). Our scope of review of disability retirement determinations under FERS is even more limited. “[T]his court is precluded by 5 U.S.C. § 8461(d) from reviewing the factual underpinnings of physical disability determinations, but may address whether there has been a ‘substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination.’ ” Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626 (Fed.Cir.1995) (quoting Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985)). Marino claims that he is eligible for disability retirement because, contrary to the board’s finding, DLA failed to accommodate his disability. The implementing regulations for disability retirement under FERS state that one of the requirements for disability retirement is" }, { "docid": "11175745", "title": "", "text": "1996, the agency issued Coursen a letter of decision stating that his removal would be effective January 26,1996. After his removal, Coursen filed an appeal to the Board, asserting jurisdiction under the Postal Employees Appeal Rights Act (“PEARA”), 39 U.S.C. § 1005(a)(4). In an initial decision, the administrative judge (“AJ”) dismissed Coursen’s appeal for lack of jurisdiction, concluding that Coursen lacked standing to appeal his removal to the Board because he had failed to show by a preponderance of the evidence that he was employed as a “supervisor or management employee” within the meaning of 39 U.S.C. § 1005(a)(4)(A)(ii). Id. at 1,4. Coursen appealed the AJ’s initial decision to the full Board. The Board denied his petition for review, thus rendering the initial decision final. 5 C.F.R. § 1201.113(b) (2000). Coursen timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994). DISCUSSION The scope of our review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 725 (Fed.Cir. 1998). The Board’s jurisdiction is not plenary, but is limited to adverse personnel actions made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a) (1994); Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed.Cir.1999). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law that we review de novo. Middleton, 185 F.3d at 1379. The burden of establishing jurisdiction is on the petitioner. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir.1999). Coursen argues that the Board erred in dismissing his appeal for lack of jurisdiction. Coursen contends that he was entitled to appeal to the Board because he was ineligible to join a collective bargaining unit (“CBU”) and because he performed the job functions of a managerial" }, { "docid": "2743490", "title": "", "text": "new system, but that those of chapter 75 were not included among them. In fact, the AJ determined that the Act specifically exempts chapter 75 appeal rights to the board from the new system. Thus, the AJ concluded that the board did not have jurisdiction over Allen’s appeal. The AJ’s initial decision became the board’s final decision when Allen failed to file a petition for review with the full board. See 5 C.F.R. § 1201.113 (1996). Allen appeals to this court, arguing that the board erred in dismissing his case for lack of jurisdiction. DISCUSSION We may reverse a decision of the board only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994); Cheese-man v. Office of Personnel Management, 791 F.2d 138, 140 (Fed.Cir.1986). The board’s jurisdiction is limited to actions made appeal-able to it by law, rule, or regulation. See 5 U.S.C. § 7701(a) (1994); Forest v. Merit Sys. Protection Bd., 47 F.3d 409, 410 (Fed.Cir.1995). Whether the board has jurisdiction to adjudicate a particular appeal is a question of law, which we review de novo. King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996). Section 347 of the Act (as amended by Pub.L. No. 104-122, § 1, 110 Stat. 876, 876 (1996)) provides in relevant part: (a) In consultation with the employees of the Federal Aviation Administration and such non-governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5, United States Code, and other Federal Personnel laws, the Administrator of the Federal Aviation Administration shall develop and implement, not later than January 1,1996, a personnel management system for the Federal Aviation Administration that addresses the unique demands on the agency’s workforce. Such a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation, and location of personnel. (b) The provisions of title 5, United States Code, shall not apply to the new personnel management system developed and implemented" }, { "docid": "23013658", "title": "", "text": "dismissed the appeal, concluding that the Board could only consider the allegations raised to the OSC, and each of those allegations involved personnel actions taken or proposed against Stoyanov’s brother. Thus, the AJ concluded that the Board has jurisdiction over IRA- appeals alleging violations of the Whistleblower Protection Act (“WPA”) for federal government employees, codified at 5 U.S.C. § 2302(b)(8) & (9), only for personnel actions taken or proposed with respect to the IRA appellant himself. Stoyanov appealed the AJ’s initial decision to the full Board, which denied his petition for review, thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113(b). Stoyanov timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000). DISCUSSION The scope of our review in an appeal from a Board decision is limited. We must affirm the decision of the Board unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000). Whether the Board has jurisdiction to adjudicate an appeal is a question of law that we review de novo. Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1213 (Fed.Cir.2003). Stoyanov, as petitioner, has the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. Id. (citing 5 C.F.R. § 1201.56(a)(2) (2001)). The Board’s jurisdiction is not plenary, but is limited to those matters over which it has been granted jurisdiction by law, rule, or regulation. Clark v. Merit Sys. Prot. Bd., 361 F.3d 647, 650 (Fed.Cir.2004). To establish the Board’s jurisdiction over an IRA appeal, we have held that an appellant must demonstrate that he exhausted his administrative remedies before the OSC and make non-frivolous allegations that: (1) he engaged in whistle-blowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Dep’t" }, { "docid": "22328910", "title": "", "text": "the statute’s plain language, the AJ concluded that tacking is prohibited under § 7511(a)(l)(C)(ii) because the required two years of current continuous service must be served “under other than a temporary appointment.” As further support, the AJ noted that when the Office of Personnel Management (“OPM”) issued its final rules implementing the Amendments, it stated that “the law does not permit ‘tacking on’ of past service in a temporary appointment to current service in a nontemporary appointment.” See 58 Fed.Reg. 13,191 (1993). Accordingly, the AJ held that Forest was not an excepted service “employee” for purposes of the Amendments and thus the board lacked jurisdiction over his appeal. The AJ’s initial decision became the final decision of the board when the board denied Forest’s petition for review. See 5 C.F.R. § 1201.118 (1994). Forest now appeals. DISCUSSION The scope of our review of board decisions is limited to whether they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). Whether the board had jurisdiction to adjudicate a case is a question of law, which we review de novo. Vesser v. Office of Personnel Management, 29 F.3d 600, 603 (Fed.Cir.1994). The board’s jurisdiction is not plenary, but is limited to actions made appealable to it by law, rule, or regulation. See 5 U.S.C. § 7701(a) (1988); 5 U.S.C. § 1204(a)(1) (Supp. V1993); Roche v. United States Postal Serv., 828 F.2d 1555, 1557 (Fed.Cir.1987). When an individual appeals to the board, he or she has the burden of proving, by a preponderance of the evidence, that the board has jurisdiction. 5 C.F.R. § 1201.56(a)(2) (1994). The sole question in this case is whether the board erred in concluding that it lacked subject matter jurisdiction over Forest’s appeal. To resolve this question, we must interpret certain provisions of the Civil Service Due Process Amendments of 1990. Forest challenges the AJ’s determination that tacking periods of service under temporary appointments to service under a" }, { "docid": "22893998", "title": "", "text": "argues that, under our holding in Stewart, the Board abused its discretion in denying him a hearing before dismissing his appeal, because he established good cause for filing late due to the agency’s failure to notify him of his appeal rights. Shiflett v. United States Postal Serv., 839 F.2d 669 (Fed.Cir.1988). These arguments raise two issues of first impression: first, does Shiflett extend to last chance settlement agreement cases, and second, when is an employee entitled to notice of appeal rights concerning an agency action pursuant to a last chance settlement agreement? ANALYSIS I. Our scope of review of MSPB decisions requires us to affirm the decision unless it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed.Cir.1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 891, 93 L.Ed.2d 844 (1987). Petitioner bears the burden of establishing any errors in the agency decision. Id. It is well established that the Board’s jurisdiction is limited to those actions appealable to it “under any law, rule, or regulation.” 5 U.S.C. § 7701(a). Equally well established is the principle that petitioner bears the burden of establishing the Board’s jurisdiction. 5 C.F.R. § 1201.-56(a)(2); Burgess v. Merit Sys. Protection Bd., 758 F.2d 641, 642-43 (Fed.Cir.1985). Even if jurisdiction is otherwise shown, the issue of timeliness remains. The regulations require an appeal of a demotion to be filed no later than 20 days after its effective date. 5 C.F.R. § 1201.-22(b). This time limit may be waived by the AJ only if petitioner shows good cause for the late filing. 5 C.F.R. §§ 1201.12 & 1201.22(c). Petitioner bears the burden of establishing good cause. 5 C.F.R. § 1201.-56(a)(2); Phillips v. United Slates Postal Serv., 695 F.2d 1389, 1391 (Fed.Cir.1982). A decision to waive the time limit is committed to the Board’s discretion and this court will not substitute its own judgment for that of the" }, { "docid": "2360519", "title": "", "text": "an IRA appeal to the Board, alleging that he was fired in retaliation for making disclosures that were protected under the WPA. In response, the Agency filed a motion to dismiss for lack of jurisdiction for failure to make any nonfrivolous allegation of a “protected disclosure” under the WPA. The administrative judge (“AJ”) dismissed Meuwissen’s appeal for failure to state a claim upon which relief can be granted, concluding that neither his conversation with his supervisors nor his decision in the Smith case were “protected disclosures” under the WPA. Id. at 10-11. Meuwissen appealed the AJ’s initial decision to the full Board. The Board denied his petition for review, thus rendering the initial decision final. 5 C.F.R. § 1201.113(b) (2000). Meuwissen timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994). DISCUSSION The scope of our review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 726 (Fed.Cir.1998). Interpretation of a statute is a question of law that we review de novo. Frederick v. Dep’t of Justice, 73 F.3d 349, 351-52 (Fed.Cir.1996). Meuwissen argues that the Board erred in concluding that his statements to his supervisors and his published Smith decision were not “protected disclosures” under the WPA. Meuwissen contends that disclosures to a direct supervisor are protected if the alleged wrongdoing is an agency-wide practice that is not directly performed by the supervisor. Meuwissen also contends that disclosures made as a part of one’s job duties are protected, even if the employee does not believe that they will place him at risk. Finally, Meuwissen asserts that his disclosures were made to persons who had the authority to remedy the problem, and that his published opinion “clearly evidences a reasonable belief on his part that the [Agency’s]" }, { "docid": "22830157", "title": "", "text": "petition for review because it did not establish the existence of significant new evidence not presented to the Board, or that the AJ erred in interpreting a law or regulation. App. 4-5. Mr. Lazaro filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). Discussion I. Mr. Lazaro challenges the Board’s denial of his petition for review of the AJ’s Initial Decision, which denied his claim for corrective action on the grounds that the Board lacked jurisdiction to adjudicate the claim. The Board grants a petition for review when significant new, previously unavailable evidence is presented, or when the AJ based his decision on an erroneous interpretation of law or regulation. 5 C.F.R. § 1201.115. We must affirm the Board’s decision to deny Mr. Lazaro’s petition unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsup ported by substantial evidence.” 5 U.S.C. § 7703(c). We review a determination of the Board’s jurisdiction de novo. See Stoyanov v. Dep’t of Navy, 474 F.3d 1377, 1379 (Fed.Cir.2007). The Board’s jurisdiction is limited to actions made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a). As the petitioner, Mr. Lazaro bears the burden of proving by preponderant evidence that the Board has jurisdiction. 5 C.F.R. § 1201.56(a)(2). II. Under the Veterans’ Preference Act of 1944, Pub.L. No. 359, ch. 287, 58 Stat. 390, preference eligible veterans receive advantages when seeking federal employment. See Mitchell v. Cohen, 333 U.S. 411, 418-19, 68 S.Ct. 518, 92 L.Ed. 774 (1948) (“The Veterans’ Preference Act was accordingly adopted, creating special preference and protection for returning veterans at every stage of federal employment.”). To enable veterans to receive these preference rights, Congress enacted statutes and authorized the Office of Personnel Management to adopt regulations related to the hiring of preference eligible veterans. See Joseph v. FTC, 505 F.3d 1380, 1381-82 (Fed.Cir.2007) (discussing the statutes and regulations enacted to provide veterans with their preference rights); MacLeod v. Dep’t of Veterans" }, { "docid": "22893864", "title": "", "text": "him, and threatened him with (1) a lowered performance appraisal rating (and subsequent placement on a performance improvement plan); (2) suspension; and (3) removal. Mr. Serrao alleged that the agency officials took or threatened to take these actions because he had filed a grievance against his supervisor, because he made disclosures of abuse of authority, gross mismanagement, and harassment, and because he was mistakenly identified as the source of a complaint to the agency’s Office of Inspector General. On March 25, 1995, the AJ dismissed Ser-rao’s appeal for lack of jurisdiction. The AJ ruled first that the Board did not have jurisdiction over the appeal under 5 U.S.C. § 7701(a)(1) because the performance rating and performance improvement plan were not adverse actions under 5 U.S.C. § 7512. Turning to Serrao’s contention that he had filed an IRA appeal over which the Board had jurisdiction under the WPA, the AJ determined that the Board lacked jurisdiction because the disclosures upon which Serrao based his appeal were made in grievance proceedings. The AJ stated: “[T]he appellant failed to establish that he made disclosures protected by 5 U.S.C. § 2802(b)(8). The Board has held that disclosures made within grievance proceedings are covered by 5 U.S.C. § 2302(b)(9) rather than § 2302(b)(8).” DISCUSSION We must affirm the AJ’s decision to dismiss Serrao’s appeal unless Serrao establishes that the decision is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994). The jurisdiction of the Board is not plenary. Rather, it is limited to those matters specifically entrusted to it by statute or regulation. See 5 U.S.C. § 7701(a)(1); Walls v. Merit Sys. Protection Bd., 29 F.3d 1578, 1581 (Fed.Cir.1994); Miller v. Department of the Army, 987 F.2d 1552, 1554 (Fed.Cir.1993). A petitioner has the burden of establishing Board jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2). Jurisdiction is a question of law that we review de novo. King v. Briggs, 83 F.3d 1384," }, { "docid": "14954196", "title": "", "text": "had not alleged that they were actually separated from their positions. Dethloff v. Social Sec. Admin., 93 M.S.P.R. 574 (2003). Thus, the Board dismissed the appeals for lack of jurisdiction. Id. at 577. Dethloff and the other ALJs timely petitioned for review with this court. Schloss is also an ALJ with the Agency. Schloss was assigned to decide a claim for disability benefits. The claimant’s representative sent two letters to Schloss seeking a'favorable on-the-record decision on the claim. However, the letters were delayed in being transmitted to Schloss. After each letter was sent to Schloss, the claimant’s representative sent a letter to Hearing Office Chief Administrative Law Judge Riley Atkins (“Atkins”), Schloss’s supervisor. The two letters alleged that Schloss was imposing an improper legal standard related to a request for an on-the-record decision. Schloss ultimately denied the request for an on-the-record decision. After reviewing Schloss’s decision, Atkins reassigned the case to another ALJ. Schloss filed a complaint with the Board. The'presiding judge held that the Agency had interfered with Schloss’s qualified de-cisional independence in reassigning the case. However, on July 28, 2003, the Board reversed the presiding judge’s Initial Decision and, citing Tunik, held that the Board had no jurisdiction over the case. Schloss v. Social Sec. Admin., 93 M.S.P.R. 578 (2003). Schloss timely petitioned for review with this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II. DISCUSSION A. Standard of Review This court must affirm the Board’s decision unless it is: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000). Whether the Board has jurisdiction to hear an appeal is a question of law reviewed de novo. Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed.Cir.1999). The Board’s jurisdiction is limited to those actions specifically granted by law, rule, or regulation. 5 U.S.C. § 7701(a) (2000); Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368, 1374 (Fed.Cir.2003). B. Analysis 1. Tunik’s Appeal As a preliminary" }, { "docid": "22756967", "title": "", "text": "although there was evidence in the record indicating that she was a veteran, she had not asserted in her appeal that she had preference-eligible status as a veteran. The AJ also noted that Postal Service records indicated that she was not entitled to a veteran’s preference. The AJ further noted that it was undisputed that Ms. Yates did not have one year of current continuous service. Accordingly, the AJ concluded, Ms. Yates could not establish Board jurisdiction under either 5 U.S.C. § 7511(a)(1)(B) or 39 U.S.C. § 1005(a)(4)(A). In his decision, the AJ did not address the question of whether the Board had jurisdiction under USERRA. On November 27, 1996, Ms. Yates petitioned the Board for review. In so doing, she challenged the AJ’s determination that she was not entitled to a veteran’s preference. She asserted no other grounds in support of her petition, however. On April 4, 1997, the AJ’s initial decision became the final decision of the Board pursuant to 5 C.F.R. § 1201.113(b) (1997), when the Board denied Ms. Yates’ petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. This appeal followed. DISCUSSION I. Our standard of review with respect to a decision of the Board is limited. We must affirm the Board’s decision unless it is 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule or regulation having been followed; or 3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c); see also King v. Department of the Navy, 130 F.3d 1031, 1033 (Fed.Cir.1997). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law which we review de novo. See King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996). Ms. Yates had the burden of establishing the Board’s jurisdiction by facts supported by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2); see also Waldau v. Merit Sys. Protection Bd., 19 F.3d 1395, 1402 (Fed.Cir.1994). In petitioning for review, Ms. Yates argues that the Board erred in dismissing her" }, { "docid": "22893865", "title": "", "text": "to establish that he made disclosures protected by 5 U.S.C. § 2802(b)(8). The Board has held that disclosures made within grievance proceedings are covered by 5 U.S.C. § 2302(b)(9) rather than § 2302(b)(8).” DISCUSSION We must affirm the AJ’s decision to dismiss Serrao’s appeal unless Serrao establishes that the decision is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994). The jurisdiction of the Board is not plenary. Rather, it is limited to those matters specifically entrusted to it by statute or regulation. See 5 U.S.C. § 7701(a)(1); Walls v. Merit Sys. Protection Bd., 29 F.3d 1578, 1581 (Fed.Cir.1994); Miller v. Department of the Army, 987 F.2d 1552, 1554 (Fed.Cir.1993). A petitioner has the burden of establishing Board jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2). Jurisdiction is a question of law that we review de novo. King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996). Serrao does not challenge the AJ’s ruling that his petition to the Board did not qualify as an adverse action appeal. Thus, the only issue before us is whether the AJ erred in dismissing the petition as an IRA appeal. I. When, as in this case, there does not exist an independent right to appeal an adverse personnel action directly to the Board, an employee may be able to bring an IRA appeal. See 5 U.S.C. § 1214(a)(3). The right to an IRA appeal is set forth in 5 U.S.C. § 1221. The statute provides that “[sjubjeet to the provisions of ... subsection 1214(a)(3), an employee ... may, with respect to any personnel action taken, or proposed to be taken against such employee, ... as a result of a prohibited personnel practice described in section 2302(b)(8), seek corrective action from the Merit Systems Protection Board.” 5 U.S.C. § 1221(a). Section 2302(b)(8) provides in pertinent part as follows: (b) Any employee who has authority to take, direct others to take, recommend, or approve any" }, { "docid": "22226884", "title": "", "text": "competitive service, thereby making her an “employee” under 5 U.S.C. § 7511(a)(1)(A). See Van Wersch v. Department of Health & Human Servs., 72 M.S.P.R. 662 (1996) (opinion and order). On remand, the AJ determined that Ms. Van Wersch had failed to establish that she had been converted to the competitive service so as to bring her within the definition of “employee” in 5 U.S.C. § 7511(a)(1)(A). See Van Wersch v. Department of Health & Human Servs., No. DC-0752-96-0049-B-3 (Dec. 23, 1997) (second initial decision). On August 6, 1998, the AJ’s second initial decision became the final decision of the Board when the Board denied Ms. Van Wersch’s petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115 (1998). See Van Wersch v. Department of Health & Human Servs., 80 M.S.P.R. 470 (1998) (order). On appeal, Ms. Van Wersch only seeks review of the Board’s decision that she was not an “employee” with appeal rights under 5 U.S.C. § 7511(a)(1)(C). She does not appeal the Board’s decision that she was not converted to the competitive service and therefore not an “employee” under 5 U.S.C. § 7511(a)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Kewley v. Department of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). The jurisdiction of the Board is not plenary. Rather, it is limited to those matters specifically entrusted to it by statute, rule, or regulation. See Todd v. Merit Sys. Protection Bd., 55 F.3d 1574, 1576 (Fed.Cir.1995). An appellant has the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. See Forest v. Merit Sys. Protection Bd., 47 F.3d 409, 410 (Fed.Cir.1995). Whether the Board has jurisdiction to adjudicate" }, { "docid": "12214305", "title": "", "text": "Mr. Schmittling’s two unilateral actions and his general disagreement with TACOM’s budgetary policy, the Agency would have moved Mr. LaMarra in order to block Mr. Schmittling’s RIF assignment to the Budget position absent Mr. Schmittling’s protected disclosures, see id. at 236-39. Vice Chair Slavét dissented, stating that the Board should have addressed the jurisdictional issue because Mr. Schmittling’s jurisdictional theory “present[ed] a question of first impression”' that was not clearly supported by statute. Id. at 239-40 (Slavet, V.C., dissenting). Vice Chair Slavet also took the position that the case should be remanded to the AJ for explicit credibility determinations based on the factors laid out in Hillen v. Department of the Army, 35 M.S.P.R. 453 (1987). See id. at 240-41. Mr. Schmittling appeals the Board’s final decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c);. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). Jurisdiction is a question of law; we thus review anew whether the Board had jurisdiction to decide a specific appeal. See Herman v. Department of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). The burden of establishing jurisdiction rests on the petitioner, see 5 C.F.R. § 1201.56(a)(2)(i), who must make a non-frivolous allegation of facts sufficient to establish jurisdiction, see Lourens v. Merit Sys. Protection Bd., 193 F.3d 1369, 1371 (Fed.Cir.1999). The jurisdiction of the Board is not plenary. See Serrao v. Merit Sys. Protection Bd., 95 F.3d 1569, 1573 (Fed.Cir.1996). Rather it is \"limited to those matters specifically entrusted to it by statute or regulation.\" Id.; see also 5 U.s.c. § 7701(a)(1). IRA appeals are governed by s u.s.c. § 1221 which states in subpart (a) that \"an employee ... may, with respect to any personnel action taken, or proposed" }, { "docid": "21444041", "title": "", "text": "Mr. Austin’s attorney filed a sworn statement with the Board in which he attested that he had timely filed a petition for review with the Board on December 26, 1995. Id. Faced with the sworn statement, the Board found that Mr. Austin had “timely filed a petition for review with the Board on December 26, 1995.” Id. It nevertheless concluded that the EEOC’s issuance of a final decision during the period when it appeared that Mr. Austin had decided to forego further proceedings before the Board deprived it of jurisdiction in the matter. Id. at 34. It therefore dismissed Mr. Austin’s petition for review. Id. This appeal followed. DISCUSSION I. We may reverse a decision of the Board only if we conclude that it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without following procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Whether the Board has jurisdiction to adjudicate a case is a question of law, which we review de novo. See Forest v. Merit Sys. Protection Bd., 47 F.3d 409, 410 (Fed.Cir.1995) (citing Vesser v. Office of Personnel Management, 29 F.3d 600, 603 (Fed.Cir.1994)). The Board’s jurisdiction is not plenary, but is limited to actions made appealable to it by law, rule, or regulation. See 5 U.S.C. § 7701(a); see also Minor v. Merit Sys. Protection Bd., 819 F.2d 280, 282 (Fed.Cir.1987). II. The Board takes the position that once the EEOC issued its final decision, the Board was without power to consider Mr. Austin’s petition for review, notwithstanding the fact that the petition was timely filed. In making this argüment, the Board relies on Williams v. United States Postal Service, 967 F.2d 577, 578-79 (Fed.Cir.1992). In Williams, the appellant allowed the AJ’s initial decision to become the final decision of the Board. Having done so, he sought review of the Board’s final decision before the EEOC. Subsequently, he appealed the EEOC’s adverse decision- to a district court. Thereafter, he filed a petition for review with the Board." }, { "docid": "22033525", "title": "", "text": "that 5 U.S.C. § 3304(f)(1) provides an opportunity for both preference-eligible veterans and those honorably separated after three or more years of active service to compete for vacant federal positions, the AJ explained that 5 U.S.C. § 3330a provides a right of appeal to the Board only to preference-eligible veterans. Id. at 2-3. The AJ therefore concluded that, because Campion did not allege or show that he was a preference-eligible veteran, the Board lacked jurisdiction over his appeal. Id. at 3. Additionally, the AJ found that the Board lacked jurisdiction because Campion did not allege that any statute or regulation creating a right to veterans’ preference had been violated. Id. The AJ also rejected Campion’s argument that the Board had jurisdiction because the Office of Personnel Management (“OPM”) advised him, albeit incorrectly, that he had an appealable action and the Department of Labor informed him of Board appeal procedures. Id. The AJ thus dismissed Campion’s appeal and the AJ’s initial decision became the final decision of the Board. Campion timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our scope of review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). Whether the Board has jurisdiction to adjudicate an appeal is a question of law that we review de novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). As petitioner, Campion has the burden of establishing the Board’s jurisdiction by preponderant evidence. See Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed.Cir.1998); 5 C.F.R. § 1201.56(a)(2)(i) (2003). On appeal, Campion argues that the Board erred in dismissing his appeal for lack of jurisdiction. Campion contends that the AJ misconstrued the VEOA, arguing that the VEOA treats veterans who" }, { "docid": "22756968", "title": "", "text": "review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. This appeal followed. DISCUSSION I. Our standard of review with respect to a decision of the Board is limited. We must affirm the Board’s decision unless it is 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule or regulation having been followed; or 3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c); see also King v. Department of the Navy, 130 F.3d 1031, 1033 (Fed.Cir.1997). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law which we review de novo. See King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996). Ms. Yates had the burden of establishing the Board’s jurisdiction by facts supported by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2); see also Waldau v. Merit Sys. Protection Bd., 19 F.3d 1395, 1402 (Fed.Cir.1994). In petitioning for review, Ms. Yates argues that the Board erred in dismissing her appeal for lack of jurisdiction because she established Board jurisdiction under USERRA. We agree. II. A. One of the purposes of USERRA is to “prohibit discrimination against persons because of their service in the uniformed services.” 38 U.S.C. § 4301(a)(3). To that end, the statute provides: A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. 38 U.S.C. § 4311(a). Under the statute, an employer is considered to have engaged in actions prohibited under § 4311(a) if, among other things, a person’s “membership” or “obligation for service in the uniformed services” is “a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership ... or" }, { "docid": "8007678", "title": "", "text": "U.S.C. § 4324(b)(4) (1994) (“A person may submit a complaint against a Federal executive agency or the Office of Personnel Management under this subchapter directly to the Merit Systems Protection Board if that person has received a notification of a decision from the Special Counsel [declining representation].”). Following a hearing, the administrative judge to whom the appeal was assigned issued an initial decision sustaining OPM’s denial of Mr. Woodman’s USERRA claim. Woodman v. Office of Pers. Mgmt., PH-3443-99-0075-1-1 (M.S.P.B. May 28, 1999). The administrative judge determined that Mr. Woodman’s entitlement to reemployment rights under USERRA depended upon whether his 14 years of AGR duty constituted career or non-career military service. The administrative judge denied Mr. Woodman’s appeal because she concluded that “the record as a whole supports a conclusion that the appellant’s service was career service and his arguments to the contrary are not persuasive.” Woodman, slip op. at 11. The administrative judge’s initial decision became the final decision of the Board on June 30, 2000, when the full Board denied Mr. Woodman’s petition for a hearing for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115(d) (1999). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994). DISCUSSION Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994); Fernandez v. Dep’t of the Army, 234 F.3d 553, 555 (Fed.Cir.2000). I. Prior to 1994, reemployment rights for veterans were set forth in the provisions of the Veterans’ Reemployment Rights Act of 1974, Pub.L. No. 93-508, 88 Stat. 1578 (codified as amended at 38 U.S.C. §§ 2021-2027 (1988 & Supp. III 1991)) (“VRRA”). See H.R.Rep. No. 103-65, 103rd. Cong.2d Sess. 18, reprinted in 1994 U.S .C.C.A.N. 2449, 2451. VRRA ensured that a person desiring to perform military service shall upon" }, { "docid": "11004315", "title": "", "text": "division to the position of GS-5 Police Officer, as a result of a change in the classification standards for the position. On September 25, 1995, Mr. Walker filed an appeal with the Board, arguing that his reassignment was effectively a constructive demotion. The administrative judge advised Mr. Walker that it appeared that the Board may not have jurisdiction over his appeal, and that he bore the burden of proving the existence of jurisdiction. When Mr. Walker subsequently failed to prove that he met the physical qualification requirements for the position of Police Officer, the administrative judge dismissed his appeal for lack of jurisdiction. Because the administrative judge dismissed the case on this basis, he did not address the apparent untimely filing of the appeal. The administrative judge’s decision became final when the Board denied review on March 28, 1996. See 5 C.F.R. § 1201.113(b) (1996). Mr. Walker appeals from the Board’s decision, which we review under 28 U.S.C. § 1295(a)(9) (1994). We must affirm the Board’s decision unless it is found to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994); Rosete v. Office of Personnel Management, 48 F.3d 514, 516 (Fed.Cir.1995). II The Board has only that jurisdiction conferred on it by Congress, and the burden of establishing the Board’s jurisdiction rests with the petitioner. Perez v. Merit Sys. Protection Bd., 85 F.3d 591, 593 (Fed.Cir.1996); Manning v. Merit Sys. Protection Bd., 742 F.2d 1424, 1426 (Fed.Cir.1984). With regard to claims involving an employee’s reassignment, the Board ordinarily possesses jurisdiction only if the agency’s action resulted in a reduction in grade or pay. See 5 U.S.C. § 7512 (1994); Artmann v. Department of Interior, 926 F.2d 1120, 1122 (Fed.Cir.1991). Hence, the Board normally lacks jurisdiction to review the reassignment of an employee who does not suffer a loss of grade or pay. Thomas v. United States, 709 F.2d 48, 49 (Fed.Cir.1983). Even if the reassignment does not facially" }, { "docid": "22226885", "title": "", "text": "she was not converted to the competitive service and therefore not an “employee” under 5 U.S.C. § 7511(a)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Kewley v. Department of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). The jurisdiction of the Board is not plenary. Rather, it is limited to those matters specifically entrusted to it by statute, rule, or regulation. See Todd v. Merit Sys. Protection Bd., 55 F.3d 1574, 1576 (Fed.Cir.1995). An appellant has the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. See Forest v. Merit Sys. Protection Bd., 47 F.3d 409, 410 (Fed.Cir.1995). Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which we review de novo. See id. I. Pursuant to 5 U.S.C. § 7701(a), “[a]n employee ... may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation.” A removal is an action that is appealable to the Board. See 5 U.S.C. §§ 7512(1), 7513(d). Thus, Ms. Van Wersch’s ability to appeal to the Board turns on whether she was an “employee” at the time of her removal by the agency. The term “employee” is defined in 5 U.S.C. § 7511(a)(1), which provides as follows: (a) For the purposes of this subchap-ter— (1) “employee” means— (A) an individual in the competitive service— (i) who is not serving a probationary or trial period under an initial appointment; or (ii) who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less; (B) a preference eligible in the excepted service who has completed 1 year of current" } ]

[ { "docid": "3388960", "title": "", "text": "is quoted above, that the court conveyed a suggestion that the jury should not award punitive damages. There is one part of the supplemental instruction, however, that was erroneous though not mentioned in plaintiffs’ objection. Indeed, the same error was made in the court’s original instructions, and was unob-jected-to at that time as welh If a jury finds that a constitutional violation has been proven but that the plaintiff has not shown injury sufficient to warrant an award of compensatory damages, the plaintiff is entitled to an award of at least nominal damages as a matter of law. See, e.g., Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d Cir.1995), cert. denied, 518 U.S. 1017, 116 S.Ct. 2546, 135 L.Ed.2d 1067 (1996); Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir.1994); McKenna v. Peekskill Housing Authority, 647 F.2d 332, 335-36 (2d Cir.1981). The jury should be so instructed, and we have held that it is plain error to instruct the jury merely that, having found a violation, it “may” award nominal damages. See, e.g., LeBlanc-Sternberg v. Fletcher, 67 F.3d at 431; Gibeau v. Nellis, 18 F.3d at 110-11. See also Abou-Khadra v. Mahshie, 4 F.3d 1071, 1078 (2d Cir.1993); Air et Chaleur, S.A. v. Janeway, 757 F.2d 489, 494 (2d Cir.1985) (unobjected-to instruction is unreviewable, see Fed.R.Civ.P. 51, except for plain error). Here, both the original and the supplemental instructions contained such an error. In its original charge, the district court instructed the jury that if it found a constitutional violation but no injury, “an award of nominal damages, even in the amount of one dollar, may be made.” (Tr. 1055 (emphasis added).) In responding to the jury’s question, the court incorporated this error in the .supplemental charge by stating that if the jury found a constitutional violation but no basis for compensatory damages, it could consider awarding punitive damages “if’ it found there should be an award of nominal damages. Both the original and the supplemental instructions thus suggested that if a constitutional violation but no" } ]

[ { "docid": "23267260", "title": "", "text": "Yes_No_ 2. Do you find that plaintiffs were libeled by the second article? Yes_No __ 3. Do you find that plaintiffs were libeled by the third article? Yes_No_ If you answered “No” to all three of Questions 1, 2, and 3, you are done with this special verdict form and your deliberations are complete. If you answered “Yes” to any of Questions 1, 2, or 3, you must proceed to Questions 4 and 5. 4. What amount of compensatory damages do you award plaintiffs? 5. Do you find that defendants acted maliciously toward plaintiffs? Yes_No_ If you answered “No” to Question 5, you are done with this special verdict form and your deliberations are complete. If you answered “Yes” to Question 5, you must proceed to Question 6. 6. What amount of punitive damages, if any, do you award plaintiffs? $- (bold in original). It is noteworthy that an answer of “yes” to “any” of questions 1, 2, or 3 would require the jury to consider damages. Thus, if any one or more of the articles was defamatory, the jury was authorized to find compensatory (including nominal) and punitive damages. Appellants approved this verdict sheet; they did not seek to have either compensatory damages or punitive damages allocated to particular articles. Cf. Levine v. CMP Publications, Inc., 738 F.2d 660, 674-76 (5th Cir.1984) (damages allocated among the various libelous articles). The jury returned a verdict finding that all three of the articles libeled the plaintiffs; that the plaintiffs were entitled to $1 in compensatory damages; that the defendants had “acted maliciously”; and that the plaintiffs were entitled to $15,000 in punitive damages. Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, the defendants renewed their motion for entry of judgment in their favor and, in the alternative, sought a new trial. The district court denied the motion and entered judgment for $15,001 in accordance with the verdict. III. LAW A. Choice Federal courts exercising diversity jurisdiction apply the choice-of-law rules of the forum state, here New York, to decide which state’s substantive law governs. See Klaxon Co. v." }, { "docid": "22937045", "title": "", "text": "Cf. Cooper Distrib. Co., Inc., v. Amana Refrigeration, Inc., 63 F.3d 262, 281-84 (3d Cir.1995) (vacating a punitive damages award for tortious interference where the jury found actual harm but $0 in compensatory damages). Third, the District Court’s instruction did nothing to counter the quick conclusion that the compensatory/punitive award ratio (1/100,000) here was untenable under Pennsylvania law, see Reading Radio, Inc. v. Fink, 833 A.2d 199, 214 (Pa.Super.Ct.2003) (“[A] reasonable relationship must still exist between the nature of the cause of action underlying the compensatory award and the decision to grant punitive damages.”), and constitutional standards, see State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (“[I]n practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”). In sum, the jury’s initial decision not to grant Acumed a compensatory award for actual damages ends the game for it. Tor-tious interference with existing or prospective contractual relations cannot be found, and thus punitive damages are not available. Instructing the jury to award $1 in compensatory damages was an unfitting effort to change these results, and the compensatory/punitive award ratio it created was off the chart of reasonableness. . This conclusion comports with accepted tort analysis, see, e.g., Action House, Inc. v. Koolik, 54 F.3d 1009, 1014 n. 4 (2d Cir.1995) (noting with approval the holding in Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 595 N.Y.S.2d 931, 612 N.E.2d 289, 292-94 (1993), that nominal damages are not allowed in tortious interference claims); 2 Dan B. Dobbs, Dobbs Law of Remedies § 6.6(2) (2d ed.1993). But see Fishkin v. Susquehanna Partners, G.P., 563 F.Supp.2d 547, 590 (E.D.Pa.2008) (awarding nominal damages on a claim of tortious interference with existing contractual relations)." }, { "docid": "23066147", "title": "", "text": "First, Fourteenth, and Fourth Amendment claims) and the false imprisonment verdict against O’Connell and Noonan. As to the amount of damages (against the remaining defendants: O’Connell, Larkin and Noonan), the district court concluded that Diesel was entitled to compensatory damages for pain and suffering, but that he was entitled to no more than nominal damages for the adverse employment actions (because Diesel would have been censured and reassigned for his misconduct even without unconstitutional retaliation), and that punitive damages were inappropriate (because there was insufficient evidence of “evil, reckless or callous” conduct). In light of these rulings, the $500,000 compensatory damages award was found to be grossly excessive. The court therefore granted a new trial on damages unless Diesel accepted a remittitur of $100,001. Diesel declined the remittitur, and a jury trial on damages was held before Magistrate Judge Fox. The district court limited this second trial to “defendants’ unconstitutionally retaliatory, selective investigation of the Lewisboro matter, and the harsh treatment and excessive detention of plaintiff on February 3, 1996.” The jury was instructed on the underlying facts of the Lewisboro incident and the liability verdicts against O’Connell, Larkin and Noonan. Diesel reintroduced the evidence relating to his pain and suffering, and claimed to have suffered “psychological trauma.” He admitted that he never sought medical help for the psychological distress, an omission he attributed to his fear that his resort to such help would have been used by the defendants as an excuse to fire him. This second jury awarded Diesel $1.5 million in compensatory damages. O’Connell, Larkin and Noonan again moved for a new trial on damages, which the court granted unless Diesel accepted a remittitur, this time in the amount of $200,000. Diesel accepted, and these cross-appeals followed. DISCUSSION We review de novo a district court’s resolution of a motion for judgment as a matter of law, see Valley Juice Ltd. v. Evian Waters of France, Inc., 87 F.3d 604, 613 (2d Cir.1996), and we apply the same standard as the district court itself was required to apply, see LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995)." }, { "docid": "22298607", "title": "", "text": "Cir.1994) (in § 1983 action, “an award of nominal damages is not discretionary where a substantive constitutional right has been violated”); McKenna v. Peekskill Housing Authority, 647 F.2d 332, 335-36 (2d Cir.1981) (where First Amendment claim was established, “[i]f no actual damages exist, the district court is directed to enter a judgment for nominal damages in favor of the plaintiffs”). It is plain error for the trial court to instruct a jury only that, if the jury finds such a violation, it “may” award such damages, rather than that it must do so. See Gibeau v. Nellis, 18 F.3d at 110-11. Where a trial court has committed such an error, and the plaintiff has been awarded no actual damages, we will remand for the award of nominal damages. See id. at 111. In the present case, the district court instructed the jury that if it found the defendants had violated the private plaintiffs’ rights but that plaintiffs had suffered no actual damages, the jury “may” award plaintiffs nominal damages. (Tr. at 5686.) Since the jury found that the Village violated the private plaintiffs’ FHA rights and conspired to violate their First Amendment rights, the Village’s liability on the claims asserted under the FHA, § 1983, and § 1985(3) was established; since the jury found that plaintiffs were not entitled to compensatory damages, plaintiffs should have been awarded nominal damages. 6. The Private Plaintiffs’ Equitable Claims We also conclude that the district court erred in its denial of the private plain tiffs’ claims for injunctive relief, which, unlike their damages claims, were tried to the court. When two claims asserted by the same plaintiff are tried together and one is to be decided by the jury and the other by the judge, principles of collateral estoppel prevent the judge from making findings of fact contrary to those of the jury. See, e.g., Curtis v. Loether, 415 U.S. at 196 n. 11, 94 S.Ct. at 1009 n. 11 (noting that in FHA suit, right to jury trial applies to all issues common to both legal and equitable claims, citing Beacon Theatres, Inc." }, { "docid": "2922929", "title": "", "text": "an award of punitive damages if the jury answered ‘Yes” to either Questions One or Four and “No” to Questions Two and Five. Viewed as a whole, therefore, the instructions failed to inform the jury that it could not award punitive damages unless it also awarded compensatory damages. Koolik advances various arguments amounting to a claim that Action House waived its rights in the district court by not objecting to the instructions. The shoe is on the other foot, however, because the instructions favored Action House, and it was under no burden to make objections on Koolik’s behalf. Action House certainly had no reason to anticipate that the district court would upset the punitive award because of the finding of “$ — 0—” compensatory damages. Koo-lik’s strongest argument, of course, is that because the jury found “$-0-” compensatory damages, the court could safely strike the award of punitives because the jury would have necessarily arrived at answers of “$-0-” compensatory and “$-0-” punitive if properly instructed. There is much force in this argument, but it depends upon two assumptions. The first and most critical assumption is that Action House waived its right to an instruction concerning nominal damages. Had nominal damages been awarded in response to Questions Three and Six, we believe that an award of punitive damages would have been consistent with New York law. See Bryce, 39 A.D.2d at 294, 333 N.Y.S.2d 614. However, Action House could not have anticipated the vacating of the punitive award under the instructions and verdict form given to the jury and thus did not waive its rights. Had Koolik made the objection regarding the relationship between compensatory and punitive damages before the case went to the jury instead of after it returned its verdict, Action House could have protected itself by requesting an instruction regarding nominal damages. An award of such damages might well have been made by the jury, and Koolik should not reap a windfall as a result of his own failure to make a timely objection. The second assumption is that the jury properly understood the difference between the" }, { "docid": "3483605", "title": "", "text": "her failure to address the harassment supports an inference that Mendez also knew of the harassment and allowed for the conduct to become the accepted custom or practice of the ECWA. In addition, the continuation of the harassment in several forms over time certainly supports the reasonableness of the conclusion that Mendez’s “fail[uxe] properly to investigate and address allegations” of harassment allowed for “the conduct [to] become[] an accepted custom or practice of the employer.” Gierlinger, 15 F.3d at 34. We therefore affirm the jury’s finding of liability with respect to Matusick’s section 1983 claims against the ECWA. C. Damages Against the ECWA Before concluding, we must address an issue not raised by either party. The district court instructed the jury that if it found one or more of the defendants liable on Matusick’s section 1983 claims, but found that he had “suffered no actual injury as- a result of this violation, you may award the plaintiff nominal damages.” Trial Tr., Aug. 31, at 125. Although the jury ultimately found the ECWA liable for violating Matusick’s constitutional rights, it declined to award damages of any kind against it. The court’s instruction was erroneous, and the jury’s verdict necessitates a limited remand in this case. It is well established that “an award of nominal damages is not discretionary where a substantive constitutional right has been violated.” Gibeau v. Nellis, 18 F.3d 107, 110-11 (2d Cir.1994); see Smith v. Coughlin, 748 F.2d 783, 789 (2d Cir.1984) (“[E]ven when a litigant fails to prove actual compensable injury, he is entitled to an award of nominal damages upon proof of violation of a substantive constitutional right.”). Accordingly, we have held that “it is plain error to instruct the jury merely that, having found a violation, it ‘may’ award nominal damages.” Robinson v. Cattaraugus Cnty., 147 F.3d 153, 162 (2d Cir.1998). The instructions should be clear that the jury “must” award nominal damages if it finds that the plaintiff has shown no actual injury from a proven constitutional violation. Id., at 162; LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d Cir.1995) (citing Gibeau, 18 F.3d" }, { "docid": "15011706", "title": "", "text": "that have considered the question have reached different results. The Seventh Circuit holds that punitive damages may be awarded in a Title VII case absent an award of actual or compensatory damages. See Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010-11 (7th Cir.1998) (Easterbrook, J.) (affirming jury award of punitive damages without actual damages and apparently without nominal damages). And, under an analogous provision of the Fair Housing Act, the Third Circuit has held that punitive damages are available absent awards of actual or nominal damages. See Alexander v. Riga, 208 F.3d 419, 430-34 (3d Cir.2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). By contrast, under the First Circuit’s rule, “punitive damages award must be vacated absent either a compensatory damages award, or a timely request for nominal damages.” Kerr-Selgas v. Am. Airlines, Inc., 69 F.3d 1205, 1215 (1st Cir.1995). Similarly, on the question of punitive damages under the Fair Housing Act, the Fourth and Fifth Circuits have held that punitive damages are not available absent a compensatory damages award. See Louisiana ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 303 (5th Cir.2000) (recognizing that punitive damages are not available in absence of actual damages unless there has been a constitutional violation), cert. denied, - U.S. -, 121 S.Ct. 1225, 149 L.Ed.2d 136 (2001); People Helpers Found., Inc. v. City of Richmond, 12 F.3d 1321, 1327 (4th Cir.1993). In defendant’s view, we should adopt the First Circuit’s approach and apply what defendant describes as the traditional common law rule that precludes punitive dam ages absent an award of actual or nominal damages. There is, however, no one common law rule. Some courts hold in common law cases that punitive damages may be awarded only where actual compensatory damages are also awarded. See, e.g., Morsey v. Chevron, USA, Inc., 94 F.3d 1470, 1477 (10th Cir.1996) (Kansas law); Brown v. Petrolite Corp., 965 F.2d 38, 48-49 (5th Cir.1992) (Texas law); Wolff v. Berkley Inc., 938 F.2d 100, 102-03 (8th Cir.1991) (Iowa law); SK Hand Tool Corp. v. Dresser Indus., Inc., 284 Ill.App.3d 417, 219 Ill.Dec." }, { "docid": "7838248", "title": "", "text": "ORDER HECKMAN, United States Magistrate Judge. Plaintiffs counsel in the above referenced matter moves for attorneys fees and expenses (Items 85, 89). Defendants move fer a thirty day extension in which to file a Notice of Appeal (Item 93). Both motions were argued on May 20, 1999, and both parties were given an opportunity to submit supplemental papers on the motion for attorney’s fees. For the reasons set forth below, plaintiffs motion for attorney’s fees is granted. Plaintiffs counsel is entitled to $50,898.56 in attorneys’ fees and expenses, of which $6,250 shall come from plaintiffs judgment. Finally, defendants’ motion to extend the time in which to file a notice of appeal is denied. BACKGROUND Plaintiff Easton Beckford, an inmate in the custody of the New York State Department of Correctional Services, brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment right against cruel and unusual punishment, and violations of his rights under the Americans with Disabilities Act (“ADA”) (Item 40). Plaintiff has been confined to a wheelchair since 1984. A jury trial was held from November 9-18, 1998 (See Item 82). Plaintiff was awarded $15,-000 in punitive damages from defendant Irvin, $10,000 in punitive damages from defendant Kruppner, and $125,000 in compensatory damages from the State of New York (Id.). Defendants previously moved to dismiss plaintiffs Americans with Disabilities Act claim, and to set aside the jury verdict, pursuant to Rules 12(b)(1), 50(b), 50(c), 59(a), and 59(e) of the Federal Rules of Civil Procedure (Item 83). Defendants’ motion was denied. Beckford v. Irvin, 49 F.Supp.2d 170 (W.D.N.Y.1999). DISCUSSION I- Attorney’s Fees. Section 1988(b) of Title 42 of the United States Code allows the court to award the prevailing party reasonable attorneys’ fees. The starting point for determining an award of attorneys’ fees begins with the court’s calculation of the “lodestar” figure, which is derived by multiplying a reasonable hourly rate by the number of hours reasonably expended during the litigation. Hensley v. Eckerhart, 461 U.S. 424 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998); LeBlanc-Sternberg" }, { "docid": "3388962", "title": "", "text": "injury were established, the jury had unfettered discretion either to award nominal damages or to withhold them. In failing to inform the jury that if it found a constitutional violation established the jury must award at least nominal damages; the instructions contained plain error. An appropriate remedy for that error, however, is for the court itself to enter judgment awarding the claimant nominal damages. See, e.g., LeBlanc-Sternberg v. Fletcher, 67 F.3d at 431; Gibeau v. Nellis, 18 F.3d at 111. Although the Seventh Amendment generally prohibits a court from augmenting a jury’s award of damages, see U.S. Const, amend. VII (“no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law”); Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603 (1935), that proscription is not violated by the court’s entering judgment awarding nominal damages when the jury has failed or refused to do so and the claimant is entitled to such damages as a matter of law. See, e.g., Gibeau v. Nellis, 18 F.3d at 111 (“[b]ecause nominal damages are mandatory under these circumstances, our [remand for entry of judgment awarding such damages without a new trial] does not impermis-sibly invade the province of the jury”). In the present case, the court eventually entered judgment ordering Edenhofer and Nichols each to pay Robinson $1.00 as nominal damages. Thus, the plain error in the instructions as to the requirement for an award of at least nominal damages was cured. We must consider ' also, however, whether plaintiffs were harmed by the incorporation of that error in the supplemental instruction as to punitive damages, for the erroneous indication that punitive damages were not available unless the jury elected to award nominal damages was not cured by having the court itself simply enter a judgment for nominal damages. We conclude that in this case the embedding of the nominal damages error in the supplemental in- struetion on punitive damages must be considered harmless. There was no suggestion whatever that an award of nominal damages" }, { "docid": "7838249", "title": "", "text": "A jury trial was held from November 9-18, 1998 (See Item 82). Plaintiff was awarded $15,-000 in punitive damages from defendant Irvin, $10,000 in punitive damages from defendant Kruppner, and $125,000 in compensatory damages from the State of New York (Id.). Defendants previously moved to dismiss plaintiffs Americans with Disabilities Act claim, and to set aside the jury verdict, pursuant to Rules 12(b)(1), 50(b), 50(c), 59(a), and 59(e) of the Federal Rules of Civil Procedure (Item 83). Defendants’ motion was denied. Beckford v. Irvin, 49 F.Supp.2d 170 (W.D.N.Y.1999). DISCUSSION I- Attorney’s Fees. Section 1988(b) of Title 42 of the United States Code allows the court to award the prevailing party reasonable attorneys’ fees. The starting point for determining an award of attorneys’ fees begins with the court’s calculation of the “lodestar” figure, which is derived by multiplying a reasonable hourly rate by the number of hours reasonably expended during the litigation. Hensley v. Eckerhart, 461 U.S. 424 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998); LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763-64 (2d Cir.1998). The court should only include hours that are supported by the attorneys time records. LeBlanc-Sternberg, 143 F.3d at 764. Any fees determined to be “excessive, redundant, or otherwise unnecessary” should be excluded from the lodestar. Gierlinger, 160 F.3d at 876 (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933). Plaintiff requests attorneys’ fees totaling $70,358.75. This is based on 411 hours of work undertaken by attorneys Robbie Lee Billingsley and Anna Marie Richmond, three hours of work performed by a paralegal, three and a half hours of work performed by a videotape specialist, and four and one quarter hours of work performed by a consultative physician (See Items 85, 89). Ms. Billingsley works at an hourly rate of $ 175.00 and has submitted time sheets showing 285.5 hours of work (Item 85, 89). Ms. Richmond works at an hourly rate of $ .150.00 and has submitted time sheets showing 125.4 hours of work (Item 85, 89). In addition, plaintiff seeks $1,570 in fees for the services of" }, { "docid": "22123094", "title": "", "text": "the record as a whole, defendants were not entitled to judgment as a matter of law for lack of proof of intentional racial discrimination. B. Causation and the Verdict Denying Compensatory Damages Defendants also urge us to uphold the entry of judgment as a matter of law on the basis of the jury’s refusal to award Tolbert compensatory damages, arguing that “the only rational construction of [the verdict] is that the defendants’ actions, even if unlawful, were not the proximate cause of any harm to plaintiff because he would have failed his comprehensive examinations regardless of those actions” (Defendants’ brief on appeal at 3), and that their actions thus “caused plaintiff no legally cognizable injury” (id. at 24). This argument is supported neither by law nor by the record. First, a plaintiff who has proven a civil rights violation, but has not proven actual compensable injury, is entitled as a matter of law to an award of nominal damages. See, e.g., Robinson v. Cattaraugus County, 147 F.3d 153, 162 (2d Cir.1998); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d Cir.1995). Even if the plaintiff fails to persuade the jury that the proven violation caused him an injury that is compensable, the defendant who committed the violation is not entitled to judgment as a matter of law. Second, defendants’ contention has no greater merit if it is viewed as an argument that the jury’s special verdict answers are inconsistent with one another. When such an inconsistency occurs, proper deference to the parties’ Seventh Amendment rights to trial by jury precludes entry of a judgment that disregards any material jury finding. See Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Fiacco v. City of Rensselaer, 783 F.2d 319, 325 (2d Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987); Crane v. Consolidated Rail Corp., 731 F.2d 1042, 1050-51 (2d Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984). The correct course, if the answers were ineluctably inconsistent, would not be to enter" }, { "docid": "2922928", "title": "", "text": "the court granted Koolik’s motion to set aside the punitive damages award. Judge Cedarbaum granted Koolik’s motion to vacate the punitive damages award. She concluded that such damages were not available under New York law in the absence of an award of compensatory damages and that the jury’s refusal to alter the “$-0-” answers to Questions Three and Six upon being asked to reconsider them necessitated the vacating of the punitive award. Action House appeals from Judge Cedarbaum’s granting of Koo-lik’s motion. The district court’s instructions on punitive damages were not consistent with New York law, which requires a finding of actual damages before punitive damages may be awarded. Bryce v. Wilde, 39 A.D.2d 291, 294, 333 N.Y.S.2d 614, 616 (3d Dep’t), aff'd, 31 N.Y.2d 882, 340 N.Y.S.2d 185, 292 N.E.2d 320 (1972). In the final sentence of the instruction on punitive damages, the court explicitly stated that the jury should state “separately” the amount of compensatory damages, “if any,” and the amount of punitive damages, “if any.” On the verdict form, Question Twenty-Two authorized an award of punitive damages if the jury answered ‘Yes” to either Questions One or Four and “No” to Questions Two and Five. Viewed as a whole, therefore, the instructions failed to inform the jury that it could not award punitive damages unless it also awarded compensatory damages. Koolik advances various arguments amounting to a claim that Action House waived its rights in the district court by not objecting to the instructions. The shoe is on the other foot, however, because the instructions favored Action House, and it was under no burden to make objections on Koolik’s behalf. Action House certainly had no reason to anticipate that the district court would upset the punitive award because of the finding of “$ — 0—” compensatory damages. Koo-lik’s strongest argument, of course, is that because the jury found “$-0-” compensatory damages, the court could safely strike the award of punitives because the jury would have necessarily arrived at answers of “$-0-” compensatory and “$-0-” punitive if properly instructed. There is much force in this argument, but it" }, { "docid": "1797842", "title": "", "text": "unjust enrichment claim as follows: “Did the [Pjlaintiff prove that the [Defendant ... was unjustly enriched as a result of the loans by the [Pjlaintiff to Agape World, Inc.?” (Tr. 338:22-25.) The Court accepted Bhukta’s requested change. (Tr. 334:2.) There were no other objections to the verdict sheet. E. The Proceedings Related to the Jury Note Regarding Nominal Damages On April 3, 2014, the jury commenced deliberations. During deliberations, the jury submitted a note to the Court asking, “Can we award punitive damages if we only award nominal damages?” (Tr. 96:8-9.) The Court granted the parties oral argument as to how it should respond to the note. Attorney Bhukta, counsel for the Plaintiff stated, “I understand the answer to that question is a yes ... The verdict sheet [states] if you find nominal damages I award punitive damages.” (Tr. 96:13-18.) In response, the Court stated that in Hubbell v. Trans World Life Ins. Co. of New York, 50 N.Y.2d 899, 430 N.Y.S.2d 589, 408 N.E.2d 918 (1980), the New York Court of Appeals stated “absent a valid claim for compensatory damages, there could be none for punitive damages.” (Tr. 96:19-97:1.) However, the Court noted that in that case, the “jury found no damages at all ... and they weren’t probably asked about nominal damages.” (Tr. 97:2-4.) The Court then discussed Bryce v. Wilde, 39 A.D.2d 291, 292, 333 N.Y.S.2d 614, 615 (3d Dep’t 1972) aff'd, 31 N.Y.2d 882, 340 N.Y.S.2d 185, 292 N.E.2d 320 (1972). The Court noted that in Bryce, the Third Department stated, “[p]unitive damages are not recoverable alone although they may be based upon an award of nominal compensatory damages and there must be actual malice shown on the part of a defendant.” (Tr. 97:8-18.) Relying on Bryce, the Court concluded that “if the conduct is egregious, you can award punitive damages, but ... you have to have something else besides the punitive damages, and the something else ... can be nominal damages.” (Tr. 97:19-98:4.) The Court then stated that it was going “tell the jury in answer to this note, ... if it meets all the" }, { "docid": "15011707", "title": "", "text": "damages award. See Louisiana ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 303 (5th Cir.2000) (recognizing that punitive damages are not available in absence of actual damages unless there has been a constitutional violation), cert. denied, - U.S. -, 121 S.Ct. 1225, 149 L.Ed.2d 136 (2001); People Helpers Found., Inc. v. City of Richmond, 12 F.3d 1321, 1327 (4th Cir.1993). In defendant’s view, we should adopt the First Circuit’s approach and apply what defendant describes as the traditional common law rule that precludes punitive dam ages absent an award of actual or nominal damages. There is, however, no one common law rule. Some courts hold in common law cases that punitive damages may be awarded only where actual compensatory damages are also awarded. See, e.g., Morsey v. Chevron, USA, Inc., 94 F.3d 1470, 1477 (10th Cir.1996) (Kansas law); Brown v. Petrolite Corp., 965 F.2d 38, 48-49 (5th Cir.1992) (Texas law); Wolff v. Berkley Inc., 938 F.2d 100, 102-03 (8th Cir.1991) (Iowa law); SK Hand Tool Corp. v. Dresser Indus., Inc., 284 Ill.App.3d 417, 219 Ill.Dec. 833, 672 N.E.2d 341, 349-50 (1996). A variant position holds that punitive damages may be awarded without an award of compensatory damages, so long as the plaintiff submitted evidence of actual damages. See, e.g., Rogers v. Loether, 467 F.2d 1110 (7th Cir.1972), aff'd sub nom. Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). The requirement of actual damages has been described by commentators as the majority rule, see Prosser & Keeton on the Law of Torts § 2, at 14 (5th ed.1984), but it has also been sharply criticized, see id; see also Restatement (Second) of Torts § 908 cmt. (c) (1979) (“[I]t is not essential to the recovery of punitive damages that the plaintiff should have suffered any harm, either pecuniary or physical.”). On the opposite side, some other courts have held that an award of nominal damages is sufficient to support punitive damages, see, e.g., Action House, Inc. v. Koolik, 54 F.3d 1009, 1013-14 (2d Cir.1995) (New York law); Ins. Servs. of Beaufort, Inc. v. Aetna Cas. and" }, { "docid": "1612131", "title": "", "text": "SUMMARY ORDER Defendant-Counter-Claimant-Appellant appeals from a final judgment entered on May 19, 2014, by the United States District Court for the Southern District of New York (Oetken, /.), following a three-week jury trial. After the jury found the defendant liable for fraud and violations of New York General Business Law (“NYGBL”) §§ 349-350, awarding compensatory, statutory, and punitive damages in the amounts of $355,811, $24,000, and $12,000,000 respectively, the defendant moved for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure or, in the alternative, for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. The district court granted in part and denied in part the defendant’s motion, remitting the punitive damages award to two times the compensatory damages award and affirming the jury verdict in all other respects. See Koch v. Greenberg, 14 F.Supp.3d 247, 253-54 (S.D.N.Y.2014). On appeal, the defendant contends that: (1) the fraud verdict should be reversed; (2) the NYGBL verdict should be reversed; and (3) punitive damages were inappropriate. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented for review. A post-verdict renewed Rule 50(b) motion for judgment as a matter of law may be granted “[o]nly if there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [the moving party]....The same standard governs appellate review of a decision ... denying judgment as a matter of law.” LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995) (internal quotation marks and citation omitted) (alteration in the original), “As to any issue on which proper [pre-verdict] Rule 50 motions were not made, [renewed post-verdict] JMOL may not properly be granted by the district court, or upheld on appeal, or ordered by the appellate court unless that action is required in order to prevent manifest injustice.” Lore v. City" }, { "docid": "6893585", "title": "", "text": "award of punitive, or exemplary damages if you find such a punitive award justified. The plaintiffs raise two attacks on this instruction. First, citing Stachniak v. Hayes, 989 F.2d 914, 923 (7th Cir.1993), they argue that a finding of excessive force by definition precludes the awarding of nominal damages. However, in Stachniak, we neither created nor applied a per se rule regarding nominal damages vis-a-vis excessive force. We held merely that a nominal damages instruction is inappropriate when no evidence is presented at trial to support a defendant’s argument that there was no provable injury. Id. This is a far cry from holding that nominal damages are never permissible once the jury finds excessive force. See also Haywood v. Koehler, 78 F.3d 101, 104 (2nd Cir.1996) (finding of excessive force does not, as a matter of law, entitle the victim to compensatory damages); Howard v. Barnett, 21 F.3d 868, 872-73 (8th Cir.1994). We recognize that “excessive force” and “nominal damages” make strange bedfellows. However, as the district court recognized in its order denying the plaintiffs’ motion for new trial, there are three situations where courts may award nominal damages to remedy the constitutional violation of excessive force. First, during an altercation between a police officer and an arrestee/detainee, the officer might use both justifiable and excessive force, but any injury might have resulted from the justifiable force, thereby supporting the denial of compensatory damages. Gibeau v. Nellis, 18 F.3d 107, 110 (2nd Cir. 1994). Next, nominal damages may be appropriate where a jury reasonably concludes that evidence concerning the plaintiffs’ injuries was not credible. Butler v. Dowd, 979 F.2d 661, 669 (8th Cir.1992) (en banc), cert. denied, 508 U.S. 930, 113 S.Ct. 2395, 124 L.Ed.2d 297 (1993). In Butler, the court affirmed the award of nominal damages to excessive force victims because “plaintiffs failed to produce at trial objective medical evidence supporting their physical injuries or detailing the extent of their emotional injuries,” and thus, the “jury could have disbelieved the plaintiffs’ testimony regarding the extent of their injuries.” Id. at 669, 672. Finally, nominal damages may be appropriate where" }, { "docid": "3388959", "title": "", "text": "supplemental instruction and the original charge, we conclude, as discussed below, that those errors were harmless. Plaintiffs’ contention that the supplemental instruction dissuaded the jury from awarding punitive damages is based in part on their assumption that the jury’s second question showed “that the jury intended to award punitive damages in favor of at least one of the plaintiffs” (id. at 9). A jury verdict, however, in the absence of stipulation by the parties, must be unanimous, see Fed.R.Civ.P. 48, and plaintiffs’ assumption that the jury had unanimously decided that it wished to award punitive damages is speculative. Plaintiffs’ challenge to the supplemental instruction is also based in part on their view that the framing of the supplemental instruction in conditional terms “implied to the jury that they should not award punitive damages” (Plaintiffs’ brief on appeal at 10). We see no error. Before the jury has returned any verdict, it is proper for the court to describe the sequential steps of deliberation in hypothetical terms. We see no indication in the supplemental instruction, which is quoted above, that the court conveyed a suggestion that the jury should not award punitive damages. There is one part of the supplemental instruction, however, that was erroneous though not mentioned in plaintiffs’ objection. Indeed, the same error was made in the court’s original instructions, and was unob-jected-to at that time as welh If a jury finds that a constitutional violation has been proven but that the plaintiff has not shown injury sufficient to warrant an award of compensatory damages, the plaintiff is entitled to an award of at least nominal damages as a matter of law. See, e.g., Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d Cir.1995), cert. denied, 518 U.S. 1017, 116 S.Ct. 2546, 135 L.Ed.2d 1067 (1996); Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir.1994); McKenna v. Peekskill Housing Authority, 647 F.2d 332, 335-36 (2d Cir.1981). The jury should be so instructed, and we have held that it is plain error to instruct the jury merely" }, { "docid": "15011705", "title": "", "text": "yet decided whether a plaintiff may receive punitive damages in Title VII cases where plaintiff has been awarded neither actual damages nor nominal damages. Uncertainty as to the availability of punitive damages was apparent in the district court’s treatment of the issue. Judge Spatt instructed the jury that punitive damages “may be allowed only if you should first unanimously award the plaintiff a verdict for actual damages.” The jury, however, returned a verdict awarding plaintiff zero actual compensatory damages and $100,000 in punitive damages. Judge Spatt then reversed his position and denied defendant’s post-trial motion to set aside the punitive damage award, holding that an award of no actual or nominal damages does not preclude a punitive damages award. In our view, Judge Spatt’s second approach was correct. An award of actual or nominal damages is not a prerequisite for an award of punitive damages in Title VII cases. The plain language of the statute does not expressly state whether punitive damages are available absent an award of actual damages, and the Courts of Appeals that have considered the question have reached different results. The Seventh Circuit holds that punitive damages may be awarded in a Title VII case absent an award of actual or compensatory damages. See Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010-11 (7th Cir.1998) (Easterbrook, J.) (affirming jury award of punitive damages without actual damages and apparently without nominal damages). And, under an analogous provision of the Fair Housing Act, the Third Circuit has held that punitive damages are available absent awards of actual or nominal damages. See Alexander v. Riga, 208 F.3d 419, 430-34 (3d Cir.2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). By contrast, under the First Circuit’s rule, “punitive damages award must be vacated absent either a compensatory damages award, or a timely request for nominal damages.” Kerr-Selgas v. Am. Airlines, Inc., 69 F.3d 1205, 1215 (1st Cir.1995). Similarly, on the question of punitive damages under the Fair Housing Act, the Fourth and Fifth Circuits have held that punitive damages are not available absent a compensatory" }, { "docid": "6479902", "title": "", "text": "necessary for the punitive award to stand under 42 U.S.C. § 1981(a) or Title VII. Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir.1998). See also Buckner v. Franco, Inc., No. 97-6028, 1999 WL 232704, 1999 U.SApp. LEXIS 7369 *17 (6th Cir. Apr. 12, 1999) (noting in dicta support for Seventh Circuit’s finding in Timm). However, in another 42 U.S.C. § 1981 case, the First Circuit held that a punitive damages award must be vacated absent either a compensatory damages award or a timely request for nominal damages. Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205, 1215 (1st Cir.1995). See also Frey v. Alldata Corp., 895 F.Supp. 221, 225 n. 1 (E.D.Wis.1995) (noting in dicta that only in cases involving a constitutional violation would federal courts allow a punitive damages award without compensatory damages); Paciorek v. Mich. Consolidated Gas Co., 179 F.R.D. 216, 221 (E.D.Mich.1998) (noting that under 42 U.S.C. § 1981(a)(b)(l) and American’s with Disabilities Act nothing conditions the imposition of punitive damages upon an award of compensatory or nominal damages). Although the goal of a federal common law of damages is to produce uniform results, so far the federal judiciary has not succeeded in this endeavor. There are many cases under the FHA and other civil rights statutes that support either upholding or vacating Lewis’ punitive damages award. However, we find most instructive our own circuit’s case law limiting punitive damages awards, absent an actual damages award, to cases were a violation of a constitutional right has occurred. LeBlanc did violate Lewis’ rights under the FHA but he did not violate Lewis’ constitutional rights. For that reason, we vacate Lewis’ punitive damage award. In the alternative, the Appellees argue that we should remand the case to the district court for a further determination of the damages award. First Appellees contend that because the jury found Le-Blanc violated the FHA the district court should have award Lewis nominal damages for this invasion of his civil rights. Appel-lees contend that when rights are violated in a civil rights case a presumption of injury exists, thereby requiring at" }, { "docid": "3483606", "title": "", "text": "Matusick’s constitutional rights, it declined to award damages of any kind against it. The court’s instruction was erroneous, and the jury’s verdict necessitates a limited remand in this case. It is well established that “an award of nominal damages is not discretionary where a substantive constitutional right has been violated.” Gibeau v. Nellis, 18 F.3d 107, 110-11 (2d Cir.1994); see Smith v. Coughlin, 748 F.2d 783, 789 (2d Cir.1984) (“[E]ven when a litigant fails to prove actual compensable injury, he is entitled to an award of nominal damages upon proof of violation of a substantive constitutional right.”). Accordingly, we have held that “it is plain error to instruct the jury merely that, having found a violation, it ‘may’ award nominal damages.” Robinson v. Cattaraugus Cnty., 147 F.3d 153, 162 (2d Cir.1998). The instructions should be clear that the jury “must” award nominal damages if it finds that the plaintiff has shown no actual injury from a proven constitutional violation. Id., at 162; LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d Cir.1995) (citing Gibeau, 18 F.3d at 110-11). Where a trial court gives an erroneous instruction of this kind, “and the plaintiff has been awarded no actual damages, we will remand for the award of nominal damages.” LeBlanc-Sternberg, 67 F.3d at 431. Because this is just such a case, we remand to the district court for the limited purpose of directing it to enter an award of nominal damages against the ECWA. D. Award of Attorney’s Fees The district court awarded attorney’s fees on the basis of the prevailing-party statute, 42 U.S.C. § 1988(b). After approving the applicable rates for Matu-sick’s attorneys and staff, the court made an across-the-board 50 percent reduction based on a perceived lack of detail in the billing records. This reduction is the only issue raised in the plaintiffs cross-appeal. Under prevailing-party statutes such as section 1988, there is a presumption that the lodestar figure represents a reasonable fee, and “if the court ... reduces that figure it must state its reasons for doing so as specifically as possible.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d" } ]

[ { "docid": "17823905", "title": "", "text": "17, 2013. EMF contends that DTF interviewed plaintiff but declined to offer him a position with the company, and his employment terminated. EMF did not come into the picture until June 26, 2014, when it purchased the assets of DTF. By that time, of course, plaintiff was no longer employed by any of these companies. DISCUSSION I. Motions for Judgment on the Pleadings under Rule 12(c): General Principles In deciding a Rule 12(c) motion for judgment on the pleadings, the court should “apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.” Mantena v. Johnson, 809 F.3d 721, 727-28 (2d Cir.2015) (quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999)). “In deciding a motion under Rule 12(c), the district court may consider only the contents of the pleadings themselves, documents attached to the pleadings as exhibits or incorporated by reference, and items of which judicial notice may be taken.” Daniels v. Commissioner of Social Security, 456 Fed.Appx. 40, 41 (2d Cir. 2012) (citing Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.1993). Additionally, where a document is not incorporated by reference, the district court may nevertheless consider it where the pleadings rely “heavily upon its terms and effect, thereby rendering the document integral to the [pleadings].” DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir.2010). Accord L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011); Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir.2009). In the case at bar, defendants have submitted copies of the asset purchase agreements between People’s United Bank and DTF, and between DTF and EMF. See Dkt. # 30-2. Those documents reflect that when DTF purchased ACG’s assets from People’s United Bank, it did not assume any liabilities of ACG, and that when EMF purchased DTF’s assets, the purchase agreement excluded any liabilities to employees other than certain specified liabilities for wages and compensation, which have no application here. See id. at" } ]

[ { "docid": "8085510", "title": "", "text": "on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The pleading standard of Rule 8 does not require “detailed factual allegations,” but demands “more than labels and conclusions” and “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A defendant may move to dismiss a complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted before filing a responsive pleading. Fed. R. Civ. P. 12(b)(6). “In ruling on a motion pursuant to Fed. R. Civ. P. 12(b)(6), the duty of a court ‘is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ ” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir.2010) (quoting Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998)). The court “accept[s] all factual allegations in the complaint as true and draw[s] all reasonable inferences in [the] plaintiffs favor.” In re Thelen LLP, 736 F.3d 213, 218 (2d Cir.2013). Nonetheless, courts “ ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). B. Pro Se Pleadings On a motion to dismiss, a pro se plaintiffs complaint “must be construed liberally with ‘special solicitude’ and interpreted to raise the strongest claims that it suggests.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir.2013) (quoting Hitt v. Curcione, 657 F.3d 116, 122 (2d Cir.2011)). A pro se plaintiff is nevertheless required to satisfy the same pleading requirements. A pro se plaintiffs “[b]ald assertions and conclusions of law are not adequate to withstand" }, { "docid": "17427198", "title": "", "text": "to ‘state a claim to relief that it is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard is met “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The court’s function “is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). “[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A court deciding a motion to dismiss pursuant to Rule 12(b)(6) must accept as true all factual allegations contained in the complaint and draw all inferences in favor of the non-moving party. Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir.2006). Nevertheless, the court “need not accord legal conclusions, deductions or opinions couched as factual allegations ... a presumption of truthfulness.” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007) (citation and internal quotation marks omitted). In deciding a motion to dismiss, the court is not limited to the face of the complaint, but may also consider “documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010) (citations omitted). II. Analysis A. Claims Under the Truth in Lending Act 1. The Truth in Lending Act The Truth in Lending Act, 15" }, { "docid": "6267849", "title": "", "text": "to state a claim upon which relief can be granted. In opposition to the motions to dismiss, the Plaintiff withdrew his claim under Substantive Due Process. II. DISCUSSION A. The Standard for a Rule 12(b)(6) Motion In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See e.g., Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). “In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient ‘to raise a right to relief above the speculative level.’ ” Operating Local 619 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth two principles for a district court to follow in deciding a motion to dismiss. 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court instructed district courts first to “identify! ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Second, if a complaint contains “well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Finally, the Court notes that, in adjudicating a motion to dismiss under Rule 12(b)(6), it is entitled to consider the following: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference; (2)" }, { "docid": "8790881", "title": "", "text": "Pharma AG and Bayer Healthcare Pharmaceuticals Inc. (“Bayer”) have moved to dismiss the amended counterclaims. For the reasons stated below, Bayer’s motion to dismiss will be granted. DISCUSSION I. MOTION TO DISMISS STANDARD “To survive a motion to dismiss, a [counterclaim] must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In making this determination, this Court is mindful of two corollary rules. “First, the tenet that a court must accept as true all of the allegations contained in a [counterclaim] is inapplicable to legal conclusions.” Id. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “Second, only a [counterclaim] that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The Supreme Court has noted that “[d]etermining whether a [counterclaim] states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (citation omitted). “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999)). Additionally, “[w]here a document is not incorporated by reference, the court may never[the]less consider it where the complaint ‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.” Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006)). II. RELEVANT PRODUCT" }, { "docid": "10816442", "title": "", "text": "(2d Cir.1994); Wynn v. Uhler, 941 F.Supp. 28, 29 (N.D.N.Y.1996) (Pooler, J.). To survive a Rule 12(b)(6) motion to dismiss, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although a pleading need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), more than mere conclusions are required. Indeed, “[wjhile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Dismissal is appropriate only where a party has failed to provide some basis for the allegations that support the elements of its claims. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (requiring “only enough facts to state a claim to relief .that is plausible on its face”). When considering a motion to dismiss, the pleading is to be construed liberally, all factual allegations are to be deemed true, and all reasonable inferences must be drawn in the pleader’s favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Finally, a district court may consider documents attached to the pleading as exhibits or incorporated by reference therein. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010). 2. Indemnification and Attorneys’ Fees The City argues that ATF may not seek reimbursement for attorneys’ fees incurred in the prosecution of this action because the indemnification clause in the contracts does not specifically authorize such fees. The indemnification clause states, in pertinent part: The City agrees, to indemnify and hold harmless [ATF] ... from and against any and all claims, losses, deficiencies, liabilities, obligations, damages, penalties, punitive damages, costs and expenses, whether or not resulting from third party claims, suffered by [ATF] which arise out of or result from: (i) any proven unlawful acts of the City (including its agents and assigns) to collect amounts secured by tax liens on Related Properties," }, { "docid": "20874828", "title": "", "text": "its Complaint. Dkt. 42. On April 6, 2015, GECC filed its motion to dismiss, Dkt. 45, along with a brief, Dkt. 48 (“GECC Br.”), and an accompanying declaration, Dkt. 46. On May 15, 2015, Ritchie filed a brief in opposition to GECC’s motion. Dkt. 54 (“Ritchie Br.”). And on June 5, 2015, GECC filed a reply brief in further support of its motion, Dkt. 56 (“GECC Reply Br.”), along with a declaration, Dkt. 56-1. II. Applicable Legal Standards A. Rule 12(b)(6) To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct ai- leged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint is properly dismissed where, as a matter of law, “the allegations in a complaint, however true, could not 'raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558, 127 S.Ct. 1955. In considering a motion to dismiss, a district court must “accept[] all factual claims in the complaint as true, and draw[] all reasonable inferences in the plaintiffs favor.” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir.2014) (quoting Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.2010)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “[R]ather, the \"complaint’s factual allegations must be enough to raise a right to relief above the speculative level, i.e., enough to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.2010) (citing Twombly, 550" }, { "docid": "17922736", "title": "", "text": "S.Ct. 1937, 173 L.Ed.2d 868 (2009) (same). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The Court does not, however, credit “mere conclusory statements” or “threadbare recitals of the elements of a cause of action.” Id. If the court can infer no more than “the mere possibility of misconduct” from the factual averments — in other words, if the well-pleaded allegations of the complaint have not “nudged claims across the line from conceivable to plausible,” dismissal is appropriate. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Starr, 592 F.3d at 321 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). On a motion to dismiss, the Court accepts as true the factual allegations in the pleadings and draws all inferences in plaintiffs’ favor. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555-57, 127 S.Ct. 1955). If a fact is susceptible to two or more competing inferences, in evaluating these motions, the Court must, as a matter of law, draw the inference that favors the plaintiff so long as it is reasonable. N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 121 (2d Cir.2013). “[T]he existence of other, competing inferences does not prevent the plaintiffs’] desired inference from qualifying as reasonable unless at least one of those competing inferences rises to the level of an obvious alternative explanation.” Id. (internal quotation marks omitted). Where necessary, the Court may supplement the allegations in the Complaint with facts from documents either referenced in the Complaint or relied upon in framing the Complaint. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010) (“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.”); Chambers v. Time Warner, Inc., 282 F.3d" }, { "docid": "19095859", "title": "", "text": "104, 110-11 (2d Cir.2010) (same). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration, citations, and internal quotation marks omitted). Instead, “[fjactual allegations must be enough to raise a right to relief above the speculative level,” id., and “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955. Plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. If plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)). In considering a Rule 12(c) motion, “a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco, 622 F.3d at 111 (reviewing a Rule 12(b)(6) dismissal); see also Dingle v. City of New York, 728 F.Supp.2d 332, 343 (S.D.N.Y.2010) (Rule 12(c) motion); Bohmer v. New York, 684 F.Supp.2d 357, 360 (S.D.N.Y.2010) (same). “Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (internal quotation marks omitted); see also Bayer Schera Pharma AG v." }, { "docid": "21685325", "title": "", "text": "under 8 U.S.C. § 1182(d)(5)(A), 8 C.F.R. § 212.5, and the “Accardi doctrine” (as discussed below). For the reasons explained , below in the analysis of Respondents’ motion to dismiss pursuant to Rule 12(b)(6), the Court concludes that Petitioners have asserted questions of law, and that Petitioners’ claims therefore fall within this Court’s habeas jurisdiction. Accordingly, Respondents’ motion to dismiss Petitioners’ parole claims under Rule 12(b)(1) is denied. B. Motion to Dismiss Pursuant to Rule 12(b)(6) 1. Parole Claims In addition to their jurisdictional challenge, Respondents assert that even if Petitioners’ parole claims are not precluded by § 1252(a)(2)(B)(ii), those claims are .meritless. A court should consider a Rule 12(b)(6) motion to dismiss for failure to state a claim “accepting all factual allegations in- the complaint and drawing all reasonable inferences in the plaintiffs favor.” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citation omitted). The Court “may only consider facts stated in the complaint or documents attached to the complaint.” Spikes Bell v. Cont’l Sch. of Beauty, 11 F.Supp.3d 403, 406 (W.D.N.Y. 2014). To withstand dismissal, a plaintiff must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.\" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“The plausibility standard is not akin to a probability requirement. ... [A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely.” (citations, alterations, and internal quotation marks omitted)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires" }, { "docid": "8057919", "title": "", "text": "The Court held oral argument on the District’s motion on January 13, 2011. II. Discussion A. Standard of Review Rule 12(c) provides that “[ajfter 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). The Court applies the same standard of review to a Rule 12(c) motion as it does to a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6). See Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir.2010). “On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiffs factual allegations as true and draw all reasonable inferences in [the plaintiffs] favor.” Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y. 2008); see also DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir.2010). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell All. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration, citations, and internal quotation marks omitted). Instead, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” id., and “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955. Plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. If plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’- — ‘that the pleader is entitled to relief.’ ” Ashcroft" }, { "docid": "20855615", "title": "", "text": "and to file a surreply in opposition to Defendant’s motion. Plaintiff filed his surreply on January 22, 2016, thereby concluding the briefing. (Dkt. #37). DISCUSSION A. Applicable Law 1. Motions to Dismiss Under Fed. R. Civ. P. 12(b)(6) When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court should “draw all reasonable inferences in [the plaintiffs] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.2011) (internal quotation marks omitted). Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “While Twombly does not require heightened fact pleading of specifics, it does require enough facts to ‘nudge [a plaintiffs] claims across the line from conceivable to plausible.’” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Moreover, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Id. at 663,129 S.Ct. 1937. “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir.2010). “Even where a document is not incorporated by reference, the court may nevertheless consider" }, { "docid": "10614923", "title": "", "text": "123-124. Gersbacher filed this action under 42 U.S.C. § 1983 on September 19, 2014. He brings claims against Defendants for (1) false arrest; (2) failure of individual officers to intervene to prevent violations of his constitutional rights; (3) use of excessive force; (4) deliberate indifference to serious medical needs on violation of his due process rights; (5) retaliation for exercise of his First Amendment rights; and' (6) municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Defendants move to dismiss all claims. II. Legal Standard In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 110-11 (2d Cir.2010) (quoting Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir.2009)). To avoid dismissal, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A formulaic recitation of the elements of a cause of action, devoid of supporting facts, does not suffice. Id. To satisfy the “plausibility” requirement, the plaintiff must plead facts that permit the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). III. Discussion A. Whether the Videos May Be Properly Considered with the 12(b)(6) Motion Before assessing the sufficiency of the complaint, the Court must determine which sources of information beyond the complaint, if any, should be considered. “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco," }, { "docid": "8493706", "title": "", "text": "District Court relied on Iqbal’s instruction that, where a particular state of mind is an element of a claim, Rule 8 requires that it be plausibly pleaded and supported by factual allegations. Biro II, 963 F.Supp.2d at 278 (citing Ashcroft v. Iqbal, 556 U.S. 662, 686-87, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 & n. 2 (2d Cir.2007). This appeal followed. DISCUSSION We review de novo the grant of a motion to dismiss under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c), accepting as true the factual allegations in the complaint and' drawing all inferences in the plaintiffs favor. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir.2010); Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir.2012). To survive either motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see DiFolco, 622 F.3d at 111 (Rule 12(b)(6)); Graziano, 689 F.3d at 114 (Rule 12(c)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is hable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. But “naked assertions” or “conclu-sory statements” are not enough. Id. (quotation marks omitted). These federal pleading rules and standards, including the Supreme Court’s interpretation of Rule 8, prevail in “ ‘all civil actions,’ ” id. at 684, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 1), including diversity litigation, see Hanna v. Plumer, 380 U.S. 460, 468-74, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Cnty. of Erie, N.Y. v. Colgan Air, Inc., 711 F.3d 147, 149 (2d Cir.2013) (applying Rule 8’s plausibility standard in an action based on diversity jurisdiction). Limited-purpose public figures who seek damages for defamatory statements must show that the statements were made with “actual malice” — that is, with knowledge that the statements were false or with reckless disregard as to their" }, { "docid": "4823239", "title": "", "text": "motion as a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), and a motion for judgment on the pleadings brought pursuant to Federal Rule of Civil Procedure 12(c). Similarly, Plaintiffs’ motion for partial judgment on the pleadings is brought pursuant to Rule 12(c). The parties agree that “the legal standards for adjudicating Rule 12(b)(6) and Rule 12(c) motions are the same.” Lindsay v. Yates, 498 F.3d 434, 437 n. 4 (6th Cir.2007). In considering a Rule 12(c) motion, “all of the well pleaded factual allegations in the adversary’s pleadings are assumed to be true and all contravening assertions in the movant’s pleadings are taken to be false.” 5C Wright & Miller, Federal Practice & Procedure § 1368. Thus, when considering a Rule 12(c) motion brought by a defendant, “[t]he court must construe the complaint in a light most favorable to the plaintiff.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.1998). “Factual allegations must be enough to raise a right to relief above a speculative level, on the assumption that all the allegations in the complaint are true.... ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct.1955). “Facial plausibility” requires the plaintiff to include sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In contrast, when the plaintiff moves for judgment on the pleadings, the motion should be granted if, “on the undenied facts alleged in the complaint and assuming as true all the material allegations of fact in the answer, the plaintiff is entitled to judgment as a matter of law.” See United States v. Blumenthal, 315 F.2d 351, 352 (3d Cir.1963); Hous. Auth. Risk Retention Group, Inc. v. Chicago Hous. Auth.," }, { "docid": "13331156", "title": "", "text": "only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Schuchart v. La Taberna Del Alabardero, Inc., 365 F.3d 33, 35 (D.C.Cir.2004) (internal citation ' and quotations omitted). The Rule 12(c) standard is substantially the same as the Rule 12(b)(6) standard. Haynesworth v. Miller, 820 F.2d 1245, 1246 (D.C.Cir.1987). This Court will dismiss a complaint if it does not contain enough factual allegations to “state a claim that relief is plausible on its face.” Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is “plausible on its face” when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations omitted). A court considering such a motion to dismiss pursuant to this rale must accept all factual allegations in the complaint as true, Bell Atl. Corp., 550 U.S. at 555, 127 S.Ct. 1955, and must construe all factual allegations in the light most favorable to the plaintiff, Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004) (internal citations omitted). Accepting all facts pleaded as true, and viewing all inferences in a light most favorable to Mr. Williams, the Court finds that the complaint sets forth sufficient factual allegations to support his claim to relief. Accordingly, defendant’s motion for judgment on the pleadings is denied. IY. SUMMARY JUDGMENT A. Legal Standard Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). A party opposing a motion for summary judgment “may not rest upon the mere allegation or denials of the adverse party’s pleading, but ..." }, { "docid": "19095858", "title": "", "text": "to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists.”). The party asserting jurisdiction, in this case Plaintiffs, has the burden of showing by a preponderance of the evidence that the Court has jurisdiction. See APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003). Rule 12(c) provides that “[a]fter 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). The Court applies the same standard of review to a Rule 12(c) motion as it does to a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6). See Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir.2010). “On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiffs factual allegations as true and draw all reasonable inferences in [the plaintiffs] favor.” Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y.2008); see also DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir.2010) (same). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration, citations, and internal quotation marks omitted). Instead, “[fjactual allegations must be enough to raise a right to relief above the speculative level,” id., and “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955. Plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. If plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. “[W]here the well-pleaded facts do not" }, { "docid": "19287616", "title": "", "text": "678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “While Twombly does not require heightened fact pleading of specifics, it does require enough facts to ‘nudge [a plaintiffs] claims across the line from conceivable to plausible.’ ” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Moreover, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere eonelusory statements.” Id. at 663, 129 S.Ct. 1937. “In considering a motion to dismiss for' failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents' incorporated by reference in the complaint.” DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir.2010). “Even where a document is'not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,’ which renders the document ‘integral’ to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam)). B. Plaintiff Has Adequately Alleged Trademark Infringement Under Both 15 U.S.C. § 1114 and the Common Law 1. Applicable Law Claims for trademark infringement under § 32 of the Lanham Act, 15 U.S.C. § 1114, are analyzed “under a familiar two-prong test. The test looks first to whether the plaintiffs mark is entitled to protection, and second to whether the defendant’s use of the mark is likely to cause consuihers confusion as to the origin or sponsorship of the defendant’s goods.” Tiffany" }, { "docid": "20855616", "title": "", "text": "[a plaintiffs] claims across the line from conceivable to plausible.’” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Moreover, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Id. at 663,129 S.Ct. 1937. “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir.2010). “Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,’ which renders the document ‘integral’ to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam)). 2. Converting a Rule 12(b)(6) Motion into a Rule 56 Motion Rule 12(d) of the Federal Rules of Civil Procedure provides that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). A district court may thus convert a motion to dismiss into a motion for summary judgment when the motion presents matters outside the pleadings, provided that the court gives “sufficient notice to an opposing party and an opportunity for that party to respond.” Groden v." }, { "docid": "7132458", "title": "", "text": "the motion to dismiss for lack of standing is granted without prejudice with respect to Bricklayers. Plaintiffs will be granted leave to file a Second Amended Complaint proffering facts that demonstrate Bricklayers’ standing to bring a claim. II. Governing Legal Standards A. Rule 12(b)(6) Motion to Dismiss On a motion to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court “accept[s] as true all factual statements alleged in the complaint and draw[s] reasonable inferences in favor of the non-moving party,” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The movant bears the burden of demonstrating that the complaint fails to state a claim upon which relief may be granted. Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.2003). To survive a Rule 12(b)(6) motion, a complaint must “plead enough facts to state a claim that is plausible on its face.” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotation marks omitted) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotations and citations omitted). In determining a Rule 12(b)(6) motion to dismiss, the Court may consider the complaint, any exhibit attached to the complaint, materials incorporated in the complaint by reference, and documents that, “although not incorporated by reference, are ‘integral’ to the complaint,” Schwartzbaum v. Emigrant Mortgage Co., No. 09 Civ. 3848, 2010 WL 2484116, at *3 (S.D.N.Y. June 16, 2010). A document is integral to the complaint if the complaint “relies heavily upon its terms and effect.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (internal quotations omitted). If a" }, { "docid": "13995199", "title": "", "text": "Civil Procedure 12(b)(6) for failure to state a claim for which relief can be granted. LEGAL STANDARD “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.2001). Thus the Court applies the same standard to both Wells Fargo’s motion for judgment on Bader’s complaint on the pleadings and Wells Fargo’s motion to dismiss Auerbach’s complaint. “In both postures, the district court must accept all allegations in the complaint as true and draw all inferences in the non-moving party’s favor.” Id. However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions” and courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1949. Rather, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). The Court is “not limited solely to the allegations in the complaint, howev er. Where a plaintiff has relied on the terms and effect of a document in drafting the complaint, and that document is thus integral to the complaint, [a court] may consider its contents even if" } ]

[ { "docid": "23378738", "title": "", "text": "the State Court the pendent state claim of abuse of process.” This appeal followed. The plaintiff has abandoned his RICO claim on appeal, and has focused his argument upon the district court’s disposition of the section 1983 claim. With regard to the official capacity claim under section 1983, the plaintiff does not challenge the district court’s determination that the eleventh amendment bars such a claim. Instead, the plaintiff asserts that the district court should have remanded the official capacity claim rather than dismissing it without prejudice. The plaintiff’s second contention addresses the district court’s subject matter jurisdiction: the plaintiff insists that the eleventh amendment bar rendered removal improvident, and therefore divested the district court of jurisdiction to address the merits of the section 1983 claim against the defendants in their individual capacities. The plaintiff’s final argument, which presumes that the district court had jurisdiction to consider the section 1983 individual capacity claim, is directed at the district court’s application of qualified immunity to grant summary judgment in favor of the defendants. We shall consider these three arguments seriatim. II. The eleventh amendment provides that: 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. Despite the textual reference to suits brought against a state by “Citizens of another State,” the Supreme Court “long ago held that the [Eleventh] Amendment bars suits against a State by citizens of that same State as well.” Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)); see also Welch v. Texas Dep’t of Highways and Pub. Transp., 483 U.S. 468, 478-88, 107 S.Ct. 2941, 2948-54, 97 L.Ed.2d 389 (1987) (reaffirming Hans). Moreover, although the protection of the eleventh amendment “does not extend to counties and similar municipal corporations[,]” Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280," } ]

[ { "docid": "23018828", "title": "", "text": "except for “prospective relief of reinstatement” should be broadened to bar both Dube’s claim against SUNY for reinstatement and his pendent state law claims. We agree, and therefore modify the order of the district court to direct dismissal of all claims against SUNY, and to preclude any injunctive relief against the individual defendants in their official capacities on Dube’s state claims. The Eleventh Amendment provides that “[t]he 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.” As we noted in Dwyer v. Regan, 777 F.2d 825 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986): The Supreme Court has consistently held that the federal courts lack jurisdiction not only over suits against a state brought by citizens of other states, as the literal language of the Amendment provides, but also over suits against such states brought by their own citizens. Thus, it is clear that, with few exceptions, federal courts are barred from entertaining suits brought by a private party against a state in its own name. Id. at 835 (citations omitted); see Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). Although Congress is empowered under section five of the Fourteenth Amendment to override Eleventh Amendment immunity and “to enforce ‘by appropriate legislation’ the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority,” Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976); see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242-43, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985); Dwyer, 111 F.2d at 835, it is well settled that 42 U.S.C. § 1983 does not constitute an exercise of that authority. Quern v. Jordan, 440 U.S. 332, 340-42, 99 S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979). Therefore, since Dube’s federal causes of action are brought under section 1983, “in the absence of consent[, any claims against] the State or" }, { "docid": "18685365", "title": "", "text": "Immunity Defendants DOCS, the Division of Parole, the New York State Commission of Correction, and the individual Parole Defendants have moved to dismiss the Second Amended Complaint to the extent that they have been sued in their official capacities, on the ground that the plaintiffs complaint is barred by the Eleventh Amendment. The Eleventh Amendment to the United States Constitution bars suit in federal court against a State, or one of its agencies or departments, unless the State has consented to be sued, or Congress has enacted legislation overriding the State’s Eleventh Amendment immunity. See Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 906-08, 79 L.Ed.2d 67 (1984); Owens v. Coughlin, 561 F.Supp. 426, 428 (S.D.N.Y.1983) (Eleventh Amendment requires dismissal of suit brought against DOCS). Although the Eleventh Amendment by its terms does not bar federal courts from hearing suits brought against a State by its own citizens, the Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974) (citations omitted). “This bar exists whether the relief sought is legal or equitable.” Papasan, 478 U.S. at 276, 106 S.Ct. at 2939 (citing Pennhurst, 465 U.S. at 100-01, 104 S.Ct. at 907-09); see Santiago v. New York State Dep’t of Correctional Servs., 945 F.2d 25, 32 (2d Cir.1991) (Although plaintiffs “claim for an injunction against DOCS is not barred by the Eleventh Amendment’s ban on retroactive damage actions, it too must be dismissed because it does not follow the requirement, established in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that a plaintiff seeking prospective relief from the state must name as defendant a state official rather than the state or a state agency directly....”), cert. denied, 502 U.S. 1094, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). Thus, because the State" }, { "docid": "14841997", "title": "", "text": "would make a final decision that they could challenge at some point in the future. If the Planning Commission had never done so, then the Plaintiffs would have lost their only opportunity to contest the Planning Commission’s action. The TCA does not require applicants to gamble in such a manner. Instead, it allows applicants to contest an action or failure to act. Because the Plaintiffs filed this action within 30 days of the Planning Commission’s failure to act on April 26, 2007, as the parties had agreed it would, this action is timely. B. Whether the Defendants are Entitled to Eleventh Amendment Immunity. The Defendants next argue that they are immune from suit under the Elev enth Amendment. The Eleventh Amendment prohibits the “Judicial power of the United States” from extending to “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. Unless Eleventh Amendment immunity is expressly waived, a state and its agencies are immune from an action for damages or injunctive relief in federal court. See Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Thiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir.1993). This jurisdictional bar also immunizes a state entity that is an “arm of the State.” See Northern Ins. Co. of N.Y. v. Chatham County, Ga., 547 U.S. 189, 193, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006). “[T]he entity asserting Eleventh Amendment immunity has the burden to show that it is entitled to immunity, i.e., that it is an arm of the state.” Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir.2002). In Gragg, sovereign immunity was denied to an entity because it failed to show “what degree of control the state maintains over the entity, where the funds for the entity are derived, and who is responsible for the judgment against the entity.” Id. The Supreme Court has “repeatedly refused to extend sovereign immunity" }, { "docid": "23615268", "title": "", "text": "argues that the district court erred in refusing to modify its original order or to allow her to develop the record as to whether Norman or the state agency was the moving force behind the wrongful conduct in this case. As we stated above, however, the defendants raised a jurisdictional issue in their motion to dismiss and the question was properly addressed at that time. B. Eleventh Amendment Immunity We agree with the district court that the Eleventh Amendment protects the State of Arkansas and the Commission from section 1983 liability in this case. We believe, however, that the district court has jurisdiction over a suit against Norman in his official capacity with regard to Nix’s request for prospective, injunctive relief. Generally, a suit brought solely against a state or a state agency is proscribed by the Eleventh Amendment. See Papasan v. Attain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-08, 79 L.Ed.2d 67 (1984); Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687-88, 40 L.Ed.2d 90 (1974); Denke v. South Dakota Dept. of Social Services, 829 F.2d 688, 689 (8th Cir.1987). Over the years, however, important exceptions to state immunity from suit have been recognized which allow citizens to vindicate rights infringed on by the state. If a state official is named as a defendant instead of the state or one of its agencies, “the Eleventh Amendment status of the suit is less straightforward.” Papasan, 478 U.S. at 276, 106 S.Ct. at 2939. Under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a state officer who violates the United States Constitution acts without state authority and is thus subject to suit. Id. at 159-60, 28 S.Ct. at 453-54. Officials, although acting in their official capacity, may be sued in federal court. Papasan, 478 U.S. at 277, 106 S.Ct. at 2939-40. Furthermore, while the Eleventh Amendment bars suits by private parties “seeking to impose a liability which must be paid from public funds in" }, { "docid": "20730190", "title": "", "text": "Section 1983’s express clause permitting these suits obviates the need to imply the same right under the general provisions of § 1981. Accordingly, we conclude that § 1983 is the exclusive mechanism to vindicate violations of § 1981 by an individual state actor acting in his individual capacity. We therefore AFFIRM the district court’s dismissal of the § 1981 claims against the individual defendants acting in their individual capacity. Claims against Miami University The appellant’s § 1981 claims against Miami University are barred by the Eleventh Amendment. The Eleventh Amendment provides: 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 of Subjects of any Foreign State. U.S. Const, amend. XI. Eleventh Amendment immunity “bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, by citizens of another state, foreigners or its own citizens.” Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir.1993) (internal citations omitted). Miami University is a public university in the state of Ohio. See Ohio Rev.Code § 3339. Since a public university qualifies as an arm of the state, see Johnson v. Univ. of Cincinnati, 215 F.3d 561, 571 (6th Cir.2000) (applying Eleventh Amendment immunity to a state university as an arm of the state), Miami University “is immune from suit under the Eleventh Amendment because it is well-settled that a plaintiff is precluded from directly suing a State in federal court,” id. Accordingly, the district court properly dismissed McCormick’s claims against Miami University. Insofar as McCormick is suing Schilling, Messman-Moore, and Wright in their official capacities for money damages, her claim is also barred by the Eleventh Amendment. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. - As such, it is" }, { "docid": "213163", "title": "", "text": "question of whether or to what extent the eleventh amendment bars this suit. Next, we will consider whether the defendants, in their individual capacities, are entitled to qualified immunity- The district court held that the eleventh amendment does not bar this suit. The plaintiffs brought this action against the defendants in both their official and individual capacities seeking both injunctive relief and damages. The district court held that the eleventh amendment protects the defendants only against an action in federal court for damages and only in their official capacities. Therefore, the eleventh amendment does not bar an action for injunctive relief or for damages against the defendants individually. The defendants claim that the eleventh amendment would bar any suit for damages in this case. Further, defendants argue that they are entitled to qualified immunity in this suit. First, we affirm the district court’s holding that the eleventh amendment is not a bar to injunctive relief against the defendants in their official capacities. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 73-74, n. 10, 109 S.Ct. 2304, 2313, n. 10, 105 L.Ed.2d 45 (1989); Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985). The eleventh amendment provides: “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.” The Supreme Court has long held that the eleventh amendment prevents a federal court from entertaining a suit brought by a citizen against his own state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). States are immune from such suits unless a state waives its immunity, Welch v. Texas Dep’t of Highways and Public Transp., 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (plurality opinion); Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883). Congress may also expressly override that immunity pursuant to its power under section 5" }, { "docid": "12162310", "title": "", "text": "commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” As noted in Dwyer v. Regan, the Supreme Court has consistently held that the federal courts lack jurisdiction not only over suits against a state brought by citizens of other states, as the literal language of the Amendment provides, but also over suits against such states brought by their own citizens. 777 F.2d 825 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986). Thus, it is clear that, with few exceptions, federal courts are barred from entertaining suits brought by a private party against a state in its own name. Dube v. State University of New York, 900 F.2d 587, 594 (2d Cir.1990); Dwyer, 111 F.2d at 835; see also Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Although Congress is empowered under section five of the Fourteenth Amendment to override Eleventh Amendment immunity and “to enforce ‘by appropriate legislation’ the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority,” Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Dube, 900 F.2d at 594; see Dwyer, 111 F.2d at 835, it is well settled that 42 U.S.C. § 1983 does not constitute an exercise of that authority. Quern v. Jordan, 440 U.S. 332, 340-42, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Therefore, since Plaintiffs federal causes of action are brought under section 1983, “in the absence of consent, [any claims against] the State or one of its agencies or departments ... [are] proscribed by the Eleventh Amendment.” Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). “This bar exists whether the relief sought is legal or equitable.” Papasan, 478 U.S. at 276, 106 S.Ct. 2932. For Eleventh Amendment purposes, SUNY “is an integral part of the government of the State [of New York] and when it is sued the State is the real party.” State Univ. of New York v. Syracuse Univ., 285" }, { "docid": "18754497", "title": "", "text": "for summary judgment alleging that the defendants’ policy of not granting general licenses by reciprocity violates the due process clause of the fourteenth amendment. As noted, the district court granted defendants’ motion for summary judgment. Neither the parties nor the trial court suggested that the eleventh amendment may bar the federal court’s jurisdiction to hear this case. Appellees, however, raised the issue at oral argument before us and by a letter a few days prior thereto. We may properly consider the issue even at this stage of the proceeding, because of the strong federalism concerns behind the amendment. See Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 188-89 (5th Cir.1986); McKay v. Boyd Const. Co., 769 F.2d 1084, 1086 (5th Cir.1985). The Eleventh Amendment provides: The judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State. This language has been construed to bar actions brought in federal court against state governments by anyone other than the federal government or another state. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-102, 104 S.Ct. 900, 906-09, 79 L.Ed.2d 67 (1984). Absent a waiver or consent by the state or an express negation of immunity by act of Congress, the eleventh amendment prohibits a federal court from awarding either legal or equitable relief against the state. Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). However, an exception to this rule first announced in Ex Parte Young, enables a federal court to entertain a suit for prospective relief against a defendant state officer upon allegations that he violated federal law, based on the legal fiction that a state officer cannot then be acting pursuant to state authority. Papasan, 106 S.Ct. at 2939-40. Whether the Louisiana Board of Dentistry or Dr. Chustz is entitled to eleventh amendment immunity are distinct issues. We consider first the dental board. The “State” for eleventh amendment purposes includes state agencies, Mt. Healthy" }, { "docid": "12574781", "title": "", "text": "brought suit in federal court against Defendants in their official capacities as directors of Utah state agencies, Plaintiffs’ suit may be barred in part or whole by the Eleventh Amendment. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). Although Defendants have not posed an Eleventh Amendment bar, we may examine sua sponte whether the Eleventh Amendment bars Plaintiffs’ claims. Mascheroni v. Board of Regents of Univ. of California, 28 F.3d 1554, 1559 (10th Cir.1994); see also Pennhurst, 465 U.S. at 99 n. 8, 104 S.Ct. at 907 n. 8 (Eleventh Amendment deprives federal courts of jurisdiction to hear claims against state and thus may be raised at any stage of the proceedings). The Eleventh Amendment to the United States Constitution provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. “Even though the clear language does not so provide, the Eleventh Amendment has been interpreted to bar a suit by a citizen against the citizen’s own State in Federal Court.” AMISUB (PSL), Inc. v. State of Colorado Dep’t of Social Servs., 879 F.2d 789, 792 (10th Cir.1989) (citing Hans v. State of Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890)). Thus, the Eleventh Amendment bars a suit brought in federal court by the citizens of a state against the state or its agencies, Pennhurst, 465 U.S. at 100, 104 S.Ct. at 908, and applies “ “whether the relief sought is legal or equitable.’” Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 588 (10th Cir.1994) (quoting Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986)). The Eleventh Amendment does not, however, bar a suit brought in federal court seeking to prospectively enjoin a state official from violating federal law. Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct." }, { "docid": "12162309", "title": "", "text": "SCCC’s campus are entitled to protection under the First Amendment and exempted from Section 50. Accordingly, Plaintiffs act of capturing the videotapes also does not run afoul of Section 50. 4. Plaintiffs Removal from Campus fails heightened scrutiny Plaintiff thus had a First Amendment right to videotape his actions on campus. In addition, Defendants have not presented a significant government interest to support restricting Plaintiffs right to preach, hand out leaflets, and videotape his preaching. Accordingly, his removal from the campus, based on the application of the trespass statute or any possible SCCC regulation or policy in effect, fails heightened scrutiny, because the government’s restriction on his activity was not narrowly tailored to serve a significant government interest. F. Eleventh Amendment Defendant D’Annibale contends that Plaintiffs claims against him pursuant to 42 U.S.C. § 1983 are barred by the Eleventh Amendment. Defs Mem. at p. 9 (Dkt. No. 67, Attch.No.l). The Eleventh Amendment provides that “[t]he 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.” As noted in Dwyer v. Regan, the Supreme Court has consistently held that the federal courts lack jurisdiction not only over suits against a state brought by citizens of other states, as the literal language of the Amendment provides, but also over suits against such states brought by their own citizens. 777 F.2d 825 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986). Thus, it is clear that, with few exceptions, federal courts are barred from entertaining suits brought by a private party against a state in its own name. Dube v. State University of New York, 900 F.2d 587, 594 (2d Cir.1990); Dwyer, 111 F.2d at 835; see also Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Although Congress is empowered under section five of the Fourteenth Amendment to override Eleventh Amendment immunity and “to enforce ‘by appropriate legislation’ the substantive provisions of the Fourteenth Amendment," }, { "docid": "21420996", "title": "", "text": "103 S.Ct. at 1317. But the court nonetheless lacked jurisdiction over that claim because sovereign immunity independently bars it. Eleventh Amendment sovereign immunity prohibits federal courts from entertaining suits brought by citizens against a state, including its agencies and departments. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54, 131 S.Ct. 1632, 1637-38, 179 L.Ed.2d 675 (2011); Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). That “bar exists whether the relief sought is legal or equitable.” Papasan, 478 U.S. at 276, 106 S.Ct. at 2939. Sovereign immunity bars Uberoi’s due process claim because the Florida Supreme Court is a department of the State of Florida. See Fla. Const, art. v § 1 (vesting the judicial power of the State in its supreme court and other inferior courts); see also. Kaimowitz v. Florida Bar, 996 F.2d 1151, 1155 (11th Cir.1993) (stating that the “Eleventh Amendment prohibits actions against state courts”). Contrary to her argument, the exception to sovereign immunity established in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), does not apply because she has sued only the Florida Supreme Court and not any individual state officers. See Stewart, 563 U.S. at 254-55, 131 S.Ct. at 1638 (stating that the exception applies only where a plaintiff seeks prospective relief against a state official, not “when the state is the real, substantial party in interest”) (quotation marks omitted); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 688-89, 121 L,Ed.2d 605 (1993) (“[The exception] has no application in suits against the States and their agencies, which are barred regardless of the relief sought.”). AFFIRMED. . Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). . The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c). .Sovereign immunity does not apply where a state waives it or Congress validly abrogates it, but" }, { "docid": "23336017", "title": "", "text": "Eleventh Amendment jurisdictional bar applies regardless of the nature of relief sought and extends to state instrumentalities and agencies. See Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Eleventh Amendment immunity also shields state officials from official capacity suits. See Central Reserve Life of N. Am. Ins. Co. v. Struve (“Central Reserve”), 852 F.2d 1158, 1160-61 (9th Cir.1988). A narrow exception exists “where the relief sought is prospective in nature and is based on an ongoing violation of the plaintiffs federal constitutional or statutory rights.” Id. at 1161 (emphasis in original); see also Papasan, 478 U.S. at 277-78, 106 S.Ct. 2932; Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 660 (9th Cir.2009) (“[A] plaintiff may ... maintain a federal action to compel a state official’s prospective compliance with the plaintiffs federal rights.”) (citations omitted). We conclude that the district court properly dismissed Krainski’s claims against UNLV under the Eleventh Amendment. Krainski concedes that the Nevada University system and its constituent institutions are agencies and instrumentalities of the State of Nevada within the meaning of the Eleventh Amendment. See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 883 n. 17 (9th Cir.2004) (noting that the Nevada System of Higher Education is immune from suit under the Eleventh Amendment). Accordingly, the district court properly dismissed Krainski’s claims against UNLV. The district court also properly dismissed the claims against the UNLV Employees in their official capacities. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (clarifying that suits against state officials in their official capacity are no different from suits against the state itself). Krainski also asserts a theory under Monell that her constitutional rights were infringed by a “de facto policy” of UNLV and the UNLV Employees. See Monell v. Dep’t of Social Servs. of N.Y., 436 U.S. 658, 690 n. 55, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, the Supreme Court has expressly declined to extend Monell’s theory of municipal liability under § 1983 to" }, { "docid": "19006531", "title": "", "text": "conclusions” when evaluating the complaint’s allegations, Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996), nor “accept as true a legal conclusion couched as a factual allegation,” Bell Atl. Corp., 550 U.S. at 570, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). D. ELEVENTH AMENDMENT IMMUNITY The Eleventh Amendment bars suits in federal court for money damages against states unless one of four exceptions apply. Metcalf & Eddy v. P.R. Aqueduct & Sewer Authority, 991 F.2d 935, 938 (1st Cir.1993). This protection from suit extends to the Commonwealth of Puerto Rico. Immunity from suit also extends from the state itself to its instrumentalities, also known as “alter egos” of the state. Ainsworth Aristocrat Int’l Pty. Ltd. v. Tourism Co. of Puerto Rico, 818 F.2d 1034, 1036 (1st Cir.1987); see Mount Healthy City School Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Immunity even extends to state officials “when the state is the real, substantial party in interest,” such as when a suit is brought against a state official in his official capacity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 89-91, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Pennhurst State School & Hasp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Bernier-Aponte v. Izquierdo-Encarnacion, 196 F.Supp.2d 93, 98-99 (D.P.R.2002). None of this means, however, that state officers cannot be sued in their official capacity. Individual state officers can be sued in their official capacities for prospective and injunctive relief to end continuing or ongoing violations of federal law. Ex Parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 52 L.Ed. 714 (1908) Official-capacity actions for prospective relief are not treated as actions against the state. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) To put it differently, Eleventh Amendment immunity does not reach to non-monetary, prospective injunctive relief. Defendants argue that the Eleventh Amendment to the United States Constitution bars the plaintiffs’ monetary claims" }, { "docid": "8637941", "title": "", "text": "all suits for legal or equitable relief brought by citizens against unconsenting states, and agencies of such states. College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); see also Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (reaffirming Edelman, Section 1983 does not override immunity granted to states under Eleventh Amendment). There are two recognized exceptions to the bar on suits: when Congress authorizes such a suit through enforcement of Section 5 of the Fourteenth Amendment, and when a state consents to being sued. College Sav. Bank, 527 U.S. at 670, 119 S.Ct. 2219. For an act by Congress to constitute a waiver, the legislation must “explicitly and by clear language indicate on its face an intent to sweep away the immunity of the [sjtates.” Quern, 440 U.S. at 345, 99 S.Ct. 1139. Similarly, any alleged consent by a state of immunity under the Eleventh Amendment must be clear and express. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). First, Congress has shown no intention of waiving states’ immunity in the civil rights statutes at issue. Sections 1981 to 1986 of Title 42, the provisions that Plaintiff claims Defendants violated through interstate agreements, do not constitute a congressional waiver of state immunity. Instead, they create causes of action against individuals for violations of civil rights. See Witt v. Mi. Dep’t of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (extending immunity to suits brought against states pursuant to Civil Rights Act). Second, the State Defendants are unconsenting states. The states have not explicitly consented to suit under the" }, { "docid": "9910288", "title": "", "text": "rights held by the individual defendants are not valid existing rights within the meaning of §§ 11 and 14 of A.N.C.S.A. (43 U.S.C. §§ 1610 and 1613). The district court dismissed this cause of action as barred by the eleventh amendment. SNA argues that this dismissal was in error because the relief requested is against the federal government: an order from the court directing “the federal government to convey the lands in question to it.” Appellant’s Opening Brief, at 43. The eleventh amendment provides: 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. U.S. Const, amend. XI. Although the eleventh amendment expressly refers to suits brought against a state by citizens of another state, the Supreme Court has interpreted its language as applying to actions brought against a state by citizens of the same state. Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Furthermore, a corporation chartered by Congress may not sue a state. Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140 (1900). This bar exists whether the relief sought is legal or equitable. Papasan v. Allain, 478 U.S. at 276, 106 S.Ct. at 2939 (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984)). Because SNA has named the Director of Forest Land and Water Management for the State of Alaska as a defendant, rather than the State of Alaska itself or one of its agencies, the court must determine whether the limited exception to the eleventh amendment recognized in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), applies. In Ex Parte Young, the Supreme Court concluded that the eleventh amendment did not bar a suit for equitable relief against a state official whose actions were taken under the authority of an unconstitutional state enactment." }, { "docid": "1386242", "title": "", "text": "the State may be sued for prospective injunctive relief under federal law. This court agrees with Maizner on this point. The Eleventh Amendment to the United States Constitution provides: 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. Pursuant to the Eleventh Amendment, states cannot be sued in federal court by their own citizens or citizens of another state. Papasan v. Allain, 478 U.S. 265, 275, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Eleventh Amendment also bars federal court actions against state agencies or instrumentalities. Shaw v. State of Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986). Unless a state unequivocally waives its sovereign immunity or Congress properly exercises its power to override that immunity, the state and its agencies are immune from suit under the Eleventh Amendment. See Bd. of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); In re Pegasus Gold Corp., 394 F.3d 1189, 1195 (9th Cir. 2005). Where immunity has not been waived or overridden, the Eleventh Amendment immunizes states and state agencies from claims seeking retrospective relief. See Ulaleo v. Paty, 902 F.2d 1395, 1398 (9th Cir.1990) (“The eleventh amendment bars citizen suits against states, institutional arms of the state, and state officials in their official capacity when the relief sought is retrospective in nature, i.e. damages.” (citations omitted)). However, the Eleventh Amendment does not bar claims for prospective declaratory or injunctive relief against states or state agencies. Native Village of Noatak v. Blotch-ford, 38 F.3d 1505, 1511 (9th Cir.1994) (“The Eleventh Amendment does not prohibit a federal court from ordering prospective, as opposed to retroactive, relief.”) (citing Edelman, 415 U.S. at 664-67, 94 S.Ct. 1347); see also Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). With respect to claims based on state law, the Eleventh Amendment completely immunizes" }, { "docid": "1386241", "title": "", "text": "his psychiatrist recommended that he refrain from working for at least six months. Id. ¶ 23. Maizner says he stopped working and filed a claim for workers’ compensation on May 13, 2005. Id. Maizner alleges that the DOE should have filed an employer’s report of injury no later than May 24, 2005, but did not do so until July 18, 2005. Id. ¶ 24. According to Maizner, on June 22, 2005, while he was on leave from work, the DOE informed him by mail that he had been given an unsatisfactory rating pursuant to the Professional Evaluation Program for Teachers. Id. ¶ 25. Maizner alleges that, on August 31, 2005, while he was still on leave, the DOE informed him by mail that he had been terminated from his position as a teacher. Id. ¶ 26. IV. ANALYSIS. A. Claims Against the State. The State argues that the Eleventh Amendment immunizes it from all claims in this case. Maizner concedes that the Eleventh Amendment shields the State from liability for money damages, but argues that the State may be sued for prospective injunctive relief under federal law. This court agrees with Maizner on this point. The Eleventh Amendment to the United States Constitution provides: 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. Pursuant to the Eleventh Amendment, states cannot be sued in federal court by their own citizens or citizens of another state. Papasan v. Allain, 478 U.S. 265, 275, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Eleventh Amendment also bars federal court actions against state agencies or instrumentalities. Shaw v. State of Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986). Unless a state unequivocally waives its sovereign immunity or Congress properly exercises its power to override that immunity, the state and its agencies are immune from suit under the Eleventh Amendment. See Bd. of Trs. of the Univ. of" }, { "docid": "20324472", "title": "", "text": "and III, McNally asserts violations of 42 U.S.C. §§ 1981, 1981a, and 1983. Under 42 U.S.C. §§ 1981 and 1983, “discrimination based on race, ethnic background, ancestry, and/or national origin committed under color of law” is generally prohibited. Mustafa v. Clark County Sch. Dist. 157 F.3d 1169, 1180 (9th Cir.1998). Compensatory and punitive damages in certain cases involving intentional discrimination in employment are provided by 42 U.S.C. § 1981a. To the extent Causes of Action II and III seek money damages from UHH or from the Individual Defendants in their official capacities, Eleventh Amendment immunity bars such claims. Under the Eleventh Amendment, a state is immune from certain actions brought in federal court by her own citizens or citizens of other states. Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir.1989). Federal court actions against agencies or instrumentalities of a state are also barred by the Eleventh Amendment. Shaw v. State of Cal. Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986). A suit against state officials in their official capacities is the same as a suit against the state itself and therefore is subject to the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Unless the state unequivocally waives sovereign immunity or Congress exercises its power under the Fourteenth Amendment to override the immunity, the state, its agencies, and its officials (acting in their official capacities) are immune from suit under the Eleventh Amendment. Witt v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Pennhurst, 465 U.S. at 99, 104 S.Ct. 900. McNally does not contest that UHH is an agency or instrumentality of the State of Hawaii such that UHH may avail itself of Eleventh Amendment immunity. See Mukaida v. Hawaii 159 F.Supp.2d 1211, 1220-22 (D.Haw.2001) (determining UHM to be an “arm of" }, { "docid": "23383225", "title": "", "text": "under these circumstances, the Michigan courts lack jurisdiction to decide these ERISA claims. Because the Michigan courts lack the jurisdiction to decide the plaintiffs’ injunc-tive and declaratory ERISA claims, the plaintiffs are without a “plain, speedy and efficient” remedy at state law. Thus, the District Court has jurisdiction over those challenges to Michigan’s tax code under ERISA seeking injunctive and declaratory relief. Because we find that the “plain, speedy and efficient” exception to the TIA applies here, we find it unnecessary to decide whether Congress intended section 502 of ERISA to be an exception to the TIA. B. The Eleventh Amendment The Eleventh Amendment provides: 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 of Subjects of a Foreign State. U.S. Const, amend. XI. This immunity is far reaching. It bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), by citizens of another state, foreigners or its own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The amendment also bars suits for monetary relief against state officials sued in their official capacity. However, the amendment does not preclude actions against state officials sued in their official capacity for prospective injunctive or declaratory relief. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Eleventh Amendment has no application under two circumstances: 1) where a state has itself waived its immunity from federal suit; and 2) where Congress has abrogated the states’ immunity. The plaintiffs make no argument for waiver, but do argue that Congress intended to abrogate the states’ immunity by passing ERISA. Congress may override the states’ Eleventh Amendment immunity when it acts pursuant to its powers under the Fourteenth Amendment, Dellmuth v. Muth, 491 U.S. 223, 227, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181" }, { "docid": "19719396", "title": "", "text": "against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XI. Although the amendment expressly prohibits only suits against states by citizens of other states, the Supreme Court has long held that the Eleventh Amendment also bars suits by citizens of the state being sued. See, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Welch v. Texas Dep’t of Highways and Public Transp., 483 U.S. 468, 472-73, 107 S.Ct. 2941, 2945-46, 91 L.Ed.2d 389 (1987) (plurality opinion). This immunity is based on a two part presupposition: (1) each state is a sovereign entity; and (2) “it is inherent in the nature of sovereignty not to be, amenable to the suit of an individual without its consent.” The Federalist No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed. 1961); see Seminole Tribe of Florida v. Florida, — U.S.-,-, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 688-89, 121 L.Ed.2d 605 (1993); Hans, 134 U.S. at 13, 10 S.Ct. at 506. Thus, “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.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); see also, Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). Further, as the Supreme Court made clear in Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Eleventh Amendment bars suits against state officials sued in their official capacity. See also, U.S. Const. amend. XI. B. Abrogation of Eleventh Amendment Immunity Despite this bar from suit, in certain limited instances Congress may abrogate the Eleventh Amendment immunity of the states by allowing suits through federal statutes. In order to determine whether Congress has abrogated the States’ sovereign immunity, we ask" } ]

[ { "docid": "22617777", "title": "", "text": "LESLIE H. SOUTHWICK, Circuit Judge: The defendant pled guilty to illegal reentry following a deportation. He had earlier been convicted of conspiracy to distribute methamphetamine. At his sentencing for illegal reentry, the district court increased his sentence because it considered his earlier crime to be a “drug trafficking offense” under a relevant Sentencing Guideline. See U.S.S.G. § 2L1.2(b)(l)(A)(i). The defendant did not object. On appeal, he argues the enhancement was improper. There was no error, and we AFFIRM. FACTUAL & PROCEDURAL HISTORY In April 2011, Texas authorities stopped a vehicle for exceeding the speed limit. One of the passengers was Jesus Rodriguez-Escareno. He was later indicted by a grand jury in the United States District Court for the Southern District of Texas for being found in the United States illegally following a deportation. See 8 U.S.C. § 1326. He pled guilty. A Presentence Investigation Report (“PSR”) was prepared. Using the Sentencing Guidelines, the PSR calculated that the base offense level was 8. The criminal history section of the PSR listed a 2001 conviction in the United States District Court for the Southern District of Iowa of conspiracy to distribute methamphetamine. Rodriguez-Escareno had been charged under 21 U.S.C. §§ 846 and 841(a)(1), and 841(b)(1)(B). Section 846 provides the same penalty for a conspiracy to commit one of the drug offenses in that subchapter as for the underlying offense. See 21 U.S.C. § 846. The PSR determined that Rodriguez-Escareno’s previous crime was a “drug trafficking offense,” which permitted the application of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(i). The offense level was reduced because he accepted responsibility for his illegal reentry. The PSR calculated a sentencing range of 41 to 51 months of imprisonment. Rodriguez-Escareno did not object to these calculations, and the district court adopted the PSR. Rodriguez-Escareno received a 48-month prison sentence. On appeal, he challenges only his sentence. DISCUSSION Rodriguez-Escareno did not object to the application of the Sentencing Guidelines. Consequently, we review only for plain error. United States v. Gonzales, 484 F.3d 712, 714 (5th Cir.2007). The first step in plain-error review is to determine whether there was" } ]

[ { "docid": "21604961", "title": "", "text": "harm of the ongoing possession and distribution of the images. Cf. Paroline, 134 S.Ct. at 1722 (“Complications may arise in disaggregating losses sustained as a result of the initial physical abuse, but those questions may be set aside for present purposes.”). Several circuit courts have expounded on. this issue post-Paroline. See, e.g., United States v. Galan, 804 F.3d 1287, 1289-91 (9th Cir. 2015) (“[T]he principles set forth by the [Supreme] Court lead to the conclusion that [the defendant] should not be required to pay for losses caused by the original abuser’s actions.”); United States v. Dunn, 777 F.3d 1171, 1181-82 (10th Cir. 2015) (“We think it inconsistent with ‘the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct’ to hold [the defendant] accountable for those harms initially caused by [the victim’s] abuser.” (quoting Paroline, 134 S.Ct. at 1725)); see also United States v. Miner, 617 Fed.Appx. 102, 103 (2d Cir. 2015) (holding that the district court adequately disaggregated the victim’s losses). We have not yet directly addressed this issue and leave it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under" }, { "docid": "16168517", "title": "", "text": "show that the ... sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.” Id. at 719. Here, the district court imposed a sentence at the bottom of the higher, incorrect guidelines range and stated that the guidelines range was “fair and reasonable.” We see nothing in the record to indicate that the district court’s reasoning in choosing a sentence would have been the same had it been confronted with a guidelines range of 97-121 months. The Government has not shown that Peralta’s sentence was not influenced by an erroneous calculation. See Ibarra-Luna, 628 F.3d at 717-19. III. CONCLUSION For the above reasons, we AFFIRM the convictions and sentences of Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing in accordance with this opinion. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Although Lilliana is referred to as Ceballos’s wife, during her testimony she stated that they were not married but were \"just living together.” . The dissent apparently discounts Vasquez’s testimony because he did not testify as to Ceballos's specific statements and also parses through Vasquez’s testimony attempting to cast doubt as to Vasquez’s identification of Ceballos. Dissent at 2-4 & n. 2. Further, the dissent attempts to discredit Vasquez's testimony because he had been drinking alcohol when he observed Ceballos at the hotel. Id. at 4. \"It is not our role, however, under our standard of review for sufficiency of the evidence, to second-guess the determinations of the jury as to the credibility of the evidence.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir.2005). . The dissent would find the district court erred in applying a two-level enhancement for obstruction of justice. Dissent at 12-16. But the rationale and arguments advanced in the dissent to support such a view are not advanced in Ceballos's brief on appeal and therefore are not properly before us. As we view Ceballos’s brief, he is raising" }, { "docid": "16942478", "title": "", "text": "The volume of pornographic images, the sexual molestation of numerous children, Tampico’s membership in NAMBLA, and his smudging the reputation of the Big Brothers program take this case outside the heartland of ordinary cases. Viewing the record as a whole, we cannot say that the district court’s departure was unreasonable. Thus, we find no reversible error in the district court’s upward departure from the sentencing guidelines. D Finally, Tampico claims the district court erred by accepting as evidence the portions of the PSR to which Tampico objected. He contends that, for the portions of the PSR to which he objected, the government should either have been required to introduce evidence to support those facts, or the court should not have considered those facts in enhancing Tampi-co’s sentence. Generally, “a PSR bears sufficient indi-cia of reliability, such that a sentencing judge may consider it as evidence in making the factual determinations required by the Sentencing Guidelines.” United States v. Huerta, 182 F.3d 361, 364 (5th Cir.1999). Although Rule 32 of the Federal Rules of Criminal Procedure requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “facts had an adequate evidentiary basis and the defendant does not present rebuttal, evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico" }, { "docid": "5670274", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" }, { "docid": "23446407", "title": "", "text": "informant. According to Gibbs, this finding is clearly erroneous since the chemist conceded that due to the absence of a purity determination, he did not know whether the actual amount of the cocaine in the material delivered to Workman was more than five grams. The chemist merely confirmed the presence of crack cocaine in the substance submitted. Additionally, Gibb’s alleges that some of the 6.1 gram figure may be attributable to the weight of the packaging. At sentencing, the district court adopted the amount found in the lab reports, de spite acknowledging the chemist’s testimony, because “he didn’t have the lab reports in front of him, and I did” and because “the net weight [of the drug quantity] was noted in those lab reports.” We find nothing in the record which shows clear error . We therefore affirm Gibb’s sentence. In conclusion, Gibb’s conviction and sentence are affirmed. The district court did not abuse its discretion in refusing to allow Gibb’s counsel to cross-examine a witness regarding his prior misdemeanors. Nor did the district court commit clear error in determining the amount of cocaine to be used in sentencing Gibbs. CONCLUSION The convictions and sentences of all seven Appellants are hereby AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Cooks pled guilty to various drug charges arising from the conspiracy at issue in this case. . We note that the evidence suggests otherwise, as a co-conspirators' phone number was found on a caller ID in a bedroom in which Crawford was sleeping. . Apparently, the district court determined that McGee did not have standing to challenge the search of his wife’s purse and McGee’s brief does not challenge this ruling. . Despite McGee's suggestions to the contrary, the issue under Whren is whether there was an objective basis for the stop. It is irrelevant whether the officers’ motivation was to conduct a traffic stop in the hope of finding drugs. Whren, 517 U.S." }, { "docid": "16942479", "title": "", "text": "requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “facts had an adequate evidentiary basis and the defendant does not present rebuttal, evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico also contends that the district court erred in enhancing his sentence under 18 U.S.C. § 2252A(b)(1) for a prior conviction relating to sexual abuse, because the prior conviction was not alleged in the indictment. Tampico claims that this is unconstitutional after the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which found that sentencing factors must be proved beyond a reasonable doubt. Tampico recognizes, however, that this issue is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). . Pattern of activity involving the sexual abuse or exploitation of a minor is defined as any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same or different victims; or (C) resulted in a conviction for such conduct. U.S.S.G. § 2G2.2, cmt. n.1. ." }, { "docid": "12332361", "title": "", "text": "Smith challenges the district court’s ruling that he did not allege that he had suffered any actual injury. “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correction facility, for mental or emotional injury while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). As Smith did not allege any physical injury stemming from his confinement in administrative segregation or in Camp J, the district court did not err in dismissing Smith’s claims that he was confined to a cell with inadequate sunlight and fresh air pursuant to Rule 12(b)(6). Smith maintains that he stated a valid claim that all of the defendants had conspired to retaliate against him. A conspiracy claim requires showings that an actual violation of § 1983 occurred and that the defendants agreed to commit an illegal act. See Hale v. Townley, 45 F.3d 914, 920 (5th Cir.1995); Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982). As no § 1983 violation was established, Smith’s claim of civil conspiracy was properly dismissed under Rule 12(b)(6). See Hale, 45 F.3d at 920. Finally, the district court determined that Smith’s claim relating to the filing of a July 2006 disciplinary report was prescribed and that his claim that Voorhies and Barrere destroyed his property in December 2007 failed because Smith had an adequate state remedy for that claim. Smith has abandoned any appeal of these issues by failing to challenge them in this court. See Yohey, 985 F.2d at 225; Brinkmann, 813 F.2d at 748. The judgment of the district court is, in all respects, AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "17572752", "title": "", "text": "supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "22982980", "title": "", "text": "130 S.Ct. 227, 175 L.Ed.2d 157 (2009), “[sentencing under the Guidelines is so complex ... that the court should not be faulted for ‘plain’ error when counsel’s affirmative statements allay any possible concern.” The error was not plain. III. Henao-Melo also contends that a § 843(b) conviction cannot constitute drug trafficking for purposes of sentencing enhancement, because the elements of § 843(b) do not match the definition of “drug trafficking offense” in § 2L1.2. “[W]e review de novo the district court’s interpretation of the guidelines.” United States v. O’Banion, 943 F.2d 1422, 1431 (5th Cir.1991). As Henao-Melo readily admits, that contention is foreclosed by Pillado-Chaparro. The judgment is AFFIRMED. . \"If the defendant previously was deported, or unlawfully remained in the United States, after ... (A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months ... increase by 16 levels.” U.S.S.G. § 2L1.2(b)(1) (emphasis removed). . See, e.g., United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir.), cert. denied,-U.S.-, 129 S.Ct. 624, 172 L.Ed.2d 616 (2008). . See, e.g., United States v. Gonzalez, 312 Fed. Appx. 618, 620 (5th Cir.), cert. denied, - U.S. -, 130 S.Ct. 291, 175 L.Ed.2d 195 (2009). (Unpublished opinions issued on or after January 1, 1996, are not precedent. 5th Cir. R. 47.5.4.) . Cf. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (”[T]he statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented [constitute sufficiently reliable evidence].”). . Section 843(b) provides, in relevant part, that ”[i]t shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter.” That is to say, \" § 843(b) requires proof that a defendant (1) knowingly or intentionally (2) used a communication facility (3) to facilitate the commission of a drug offense.” United" }, { "docid": "23446408", "title": "", "text": "commit clear error in determining the amount of cocaine to be used in sentencing Gibbs. CONCLUSION The convictions and sentences of all seven Appellants are hereby AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Cooks pled guilty to various drug charges arising from the conspiracy at issue in this case. . We note that the evidence suggests otherwise, as a co-conspirators' phone number was found on a caller ID in a bedroom in which Crawford was sleeping. . Apparently, the district court determined that McGee did not have standing to challenge the search of his wife’s purse and McGee’s brief does not challenge this ruling. . Despite McGee's suggestions to the contrary, the issue under Whren is whether there was an objective basis for the stop. It is irrelevant whether the officers’ motivation was to conduct a traffic stop in the hope of finding drugs. Whren, 517 U.S. at 813, 116 S.Ct. 1769 (foreclosing any argument that the Constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.) As long as the traffic stop is proper, it is irrelevant whether the officers actually issued a citation for driving with a suspended license. . We also note that the identification of the author/declarant is not always necessary for admission of a drug ledger as a co-conspirator’s statement. United States v. Fierro, 38 F.3d 761, 773 (5th Cir.1994). . Alternatively, we note that minor participant status need not be granted to Thomas since his sentence was only based on drug activity in which he was actually involved. See United. States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995) (holding that when sentence is based on activity in which defendant was actually involved, Sentencing Guidelines do not require reduction in base offense level even though defendant's activity in larger conspiracy may have been minor or minimal); United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir.l997)(holding that because only the" }, { "docid": "22659397", "title": "", "text": "PER CURIAM: We sua sponte withdraw the prior panel opinion, United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir.2014), and substitute the following: Defendant-Appellant Juan Francisco Martinez-Lugo appeals from the district court’s application of a 16-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(i) for his having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months based upon Martinez’s 2002 Georgia conviction for possession with intent to distribute marijuana. For the reasons set out below, we AFFIRM the sentence. FACTS AND PROCEEDINGS Martinez-Lugo was charged in an indictment with being unlawfully present in the United States following removal. He pleaded guilty to the indictment without the benefit of a written plea agreement. In the Presentence Report (“PSR”), the Probation Office determined that Martinez-Lugo’s base offense level was eight. It applied a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(i) for having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months. The recommendation was based on Martinez-Lugo’s 2002 Georgia conviction for possession with intent to distribute marijuana, for which Martinez-Lugo was sentenced to five years of imprisonment with two of those years probated. Applying a two-level reduction for acceptance of responsibility, the Probation Office determined that Martinez-Lugo’s total offense level was 22. Based upon Martinez-Lugo’s total offense level of 22 and criminal history category of IV, it calculated that his guidelines sentence range was 63-78 months of imprisonment and that his guidelines sentence range would be 57-71 months of imprisonment if he were granted an additional one-level reduction for acceptance of responsibility. As an attachment to the PSR, the Probation Office included the accusation, guilty plea documentation, and final judgment from Martinez-Lugo’s 2002 conviction, and those documents showed that MartinezLugo had been convicted under Ga.Code Ann. § 16 — 13—30(j)(l) (2002). When the case was first called for sentencing, Martinez-Lugo raised an objection to the 16-level enhancement on the ground that his prior Georgia conviction did not qualify as a “drug trafficking offense” under the Supreme Court’s reasoning in Moncrieffe v. Holder, —" }, { "docid": "21604962", "title": "", "text": "it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless— (i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described; (ii) the court finds that there exists a mitigating circumstance of a land or to a degree, that— (I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking ac count of any amendments to such sentencing guidelines or policy statements by Congress; (II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and (III) should result in a sentence different from that described; or (iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance" }, { "docid": "23057811", "title": "", "text": "EDITH BROWN CLEMENT, Circuit Judge: Jorge Adalberto Mungia-Portillo (“Mun-gia”) pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). The district court enhanced his sentence by sixteen levels after determining that Mungia’s 1992 Tennessee conviction for aggravated assault qualified as a crime of violence under the United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2. For the reasons that follow, we affirm the judgment of the district court. I. FACTS AND PROCEEDINGS Mungia pleaded guilty to illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326(a). The pre-sentence investigation report (“PSR”) assessed a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a) and subtracted three levels for acceptance of responsibility. Mungia had been convicted of aggravated assault in Tennessee in 1992, and the PSR added sixteen levels pursuant to § 2L1.2(b)(l)(A), considering the prior conviction to be a crime of violence. With a total offense level of twenty-one and a criminal history score of three, Mungia’s recommended sentencing range was between forty-one and fifty-one months. Mungia filed an objection to the PSR, challenging the enhancement under § 2L1.2(b)(l)(A) because the Tennessee assault statute permitted a conviction for aggravated assault based on reckless con duct. At sentencing, the district court overruled the objection and sentenced Mungia to forty-six months imprisonment and a three-year term of supervised release. Mungia appeals, challenging the crime of violence determination and also the constitutionality of 8 U.S.C. § 1326(b). He concedes that the second challenge is foreclosed but raises it in order to preserve it for further review. II. DISCUSSION ? court reviews the district court’s application of the sentencing guidelines de novo. United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir.2004) (en banc). For crimes committed under 8 U.S.C. § 1326, U.S.S.G. § 2L1.2(b)(l)(A)(ii) provides for a sixteen level increase to a defendant’s offense level if the defendant was previously deported following a conviction for a crime of violence. The commentary defines crime of violence as (1) any of a list of enumerated offenses, among which “aggravated assault” is included, or (2) “any offense under federal," }, { "docid": "6562243", "title": "", "text": "PER CURIAM: Defendant-Appellant Andre McDaniels appeals the sentences imposed following his guilty-plea conviction on nine counts of tampering with a witness by corrupt persuasion. The district court sentenced him to 78 months of imprisonment on each count, with those sentences to run concurrently with each other but consecutively to federal sentences that McDaniels was already serving following prior convictions on charges of coercion and enticement. McDaniels argues that the sentences imposed by the district court were substantively unreasonable because the district court did not afford adequate weight to the applicable guidelines range — U.S.S.G. § 5G1.3 in particular — in its balancing of the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). He did not object on this basis in the district court, however, so plain error review applies. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). McDaniels does not attempt to show that the alleged error either “affected [his] substantial rights” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” however, so he cannot establish reversible plain error. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citations omitted); see also United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "17572751", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC.alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" }, { "docid": "22722479", "title": "", "text": "did not raise this argument in the district court, review is limited to plain error. See Calverley, 37 F.3d at 162-64. Slaughter concedes that a two-level reduction in his offense level would not affect the applicable sentencing guideline range. If his offense level were reduced from 46 to 44, his offense level would still be treated as the maximum offense level of 43 pursuant to U.S.S.G. Ch.5, Pt. A, comment, (n.2). Because Slaughter concedes that the correction of this alleged error would not change the applicable guideline sentencing range, we decline to address the merits of this claim. See United States v. Lopez, 923 F.2d 47, 51 (5th Cir.1991). Slaughter argues that his conviction should be reversed because the jury was not required to find the quantity of drugs as an element of each of the charged offenses. Slaughter’s argument is foreclosed by this court’s precedent. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.2000); United States v. Watch, 7 F.3d 422, 426 (5th Cir.1993). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "2104261", "title": "", "text": "32 (the level assigned to offenses involving at least one and a half kilograms, but less than five kilograms, of methamphetamine). See § 2Dl.l(c)(4). Therefore, based on adjustments made to Jones’ original base-offense level (two-point enhancement for use of a firearm, and three-point reduction for acceptance of responsibility), his total offense level became 31, with a corresponding sentencing range of 188-235 months. Accordingly, the court erred in determining Amendment 782 did not lower Jones’ sentencing range. In denying the motion, the court relied solely on its calculation of the offense level, and, therefore, did not consider whether the modification was warranted under the § 3553(a) factors, or the nature and seriousness of the danger to the community that may be posed by a reduction in the sentence. See United States v. Larry, 632 F.3d 933, 937 (5th Cir.2011). Accordingly, the court abused its discretion in denying the motion. See id. The order denying the motion to reduce Jones’ sentence pursuant to § 3582(c)(2) is VACATED, and this matter is REMANDED for the court’s reconsideration of the proper calculation of the Guidelines sentencing range in the light of Amendment 782, and also to determine whether the reduction is warranted in the light of the relevant sentencing factors. See 18 U.S.C § 3582(c); U.S.S.G. § 1B1.10, comment. (n.l(B)(i)-(ii)). VACATED and REMANDED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "22780761", "title": "", "text": "the direction of a sports team’s physician, and in the physician’s presence, a trainer injects a player with non-medically necessary steroids. Because the delivery of the steroids was not by the physician, or pursuant to his lawful order, it would not constitute “dispensing”; but it would constitute “administering.” Although Teran-Salas describes a theoretical possibility that the Texas statute criminalizes conduct that would not qualify as a drug trafficking offense, there is not a realistic probability that Teran-Salas was prosecuted for engaging in medical care or research that involved administering cocaine in amounts greater than four grams. In Ruiz-Sanchez, this court held that a district court did not plainly err in applying a 16-level drug trafficking enhancement based on a prior conviction under an Illinois statute similar to § 481.112(a). United States v. Ruiz-Sanchez, No. 12- 40199, 574 Fed.Appx. 424, 425, 2014 WL 2925157, at *1 (5th Cir. June 30, 2014) (per curiam) (unpublished). The Ruiz-Sanchez court rejected the argument that the Illinois statute criminalized conduct not qualifying as a drug trafficking offense— specifically, administering a controlled substance—because he could not point to an Illinois case applying the statute in an “administering” situation. 574 FedAppx. at 425, 2014 WL 2925157 at *1. It explained that “[a] ‘theoretical possibility’ that a statute encompasses other types of conduct that would not qualify is insufficient to avoid application of the enhancement.” Id. (citing Carrasco-Tercero, 745 F.3d at 197-98). Similarly, in Villedctr-Mejia, this court rejected the same argument in a case involving a similar Washington statute. 559 Fed.Appx. at 388-89 (affirming district court’s application of drug trafficking enhancement under plain error review). The Villedar-Mejia court explained that because the defendant “ha[d] not pointed to a Washington case applying this statute in an ‘administering’ situation,” it was “far from clear that the Washington statute encompasses ‘administering.’ ” Id. at 389; see also Carrasco-Tercero, 745 F.3d at 195, 197-98 (affirming, upon de novo review, district court’s sentence enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) for a prior conviction for a “crime of violence” because defendant could not demonstrate a “realistic probability”). Like the defendants in Ruiz-Sanchez and Villedar-Mejia, Teran-Salas" }, { "docid": "22982963", "title": "", "text": "JERRY E. SMITH, Circuit Judge: Armando Henao-Melo pleaded guilty to being found unlawfully in the United States following deportation. The district court enhanced the sentence under the drug trafficking offense provision in U.S.S.G. § 2L1.2(b)(l)(A)(i) based on a previous conviction for use of a telephone to facilitate the commission of a narcotics offense, 21 U.S.C. § 843(b). Henao-Melo contends, in relevant part, that the court erred in applying the drug trafficking enhancement, because the government failed to provide sufficient documentation to establish that the particular narcotics offense he facilitated was a drug trafficking offense. We agree. Nevertheless, because the error was not plain, we affirm. I. The presentence report (“PSR”) assessed a base offense level of 8, which the court increased under § 2L1.2(b)(l)(A)(i), which provides a 16-level increase for a prior felony conviction of drug trafficking for which the sentence imposed exceeded 13 months. After a two-level reduction for acceptance of responsibility, the offense level was 22. That score, combined with the criminal history category of II, resulted in a guideline imprisonment range of 41 to 51 months. Henao-Melo filed several objections. In relevant part, he argued that the government had failed to produce sufficient evidence to establish the prior conviction used as the basis for the enhancement. In the event the government produced such evidence, Henao-Melo argued that the elements of § 843(b) do not meet the definition of a drug trafficking offense for purposes of § 2L1.2(b)(l)(A)(i). Henao-Melo recognized that that argument was foreclosed by United States v. Pillado-Chaparro, 543 F.3d 202 (5th Cir.2008) (per curiam), cert. denied, — U.S. -, 129 S.Ct. 2766, 174 L.Ed.2d 274 (2009), but he raised it to preserve it for further review. At sentencing, Henao-Melo acknowledged that the supporting documentation had been produced, and the court overruled the objection to the enhancement. The court granted the government’s request for an additional one-level reduction for acceptance of responsibility pursuant to § 3El.l(b) and a two-level reduction for early disposition pursuant to § 5K3.1. Those adjustments resulted in a revised total offense level of 19 and guidelines imprisonment range of 33 to 41" }, { "docid": "5670275", "title": "", "text": "reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." } ]

[ { "docid": "19819060", "title": "", "text": "challenges in the light most favorable to the prosecution and will only reverse if we determine that no reasonable finder of fact could find the defendant guilty beyond a reasonable doubt. United States v. Dinga, 609 F.3d 904, 907 (7th Cir.2010). Additionally, Federal Rule of Criminal Procedure 29 states that any defendant wishing to challenge evidence sufficiency must move for judgment of acquittal at the close of evidence or within seven days of the verdict. Fed.R.Civ.P. 29. There is no indication in the record that the appellant ever made such a motion. Accordingly, this Court will only reverse if it finds a manifest miscarriage of justice under the plain error standard of review. Id. The “in furtherance of’ element of § 924(c) requires that the weapon further, advance, move forward, promote or facilitate the drug-trafficking crime, and that the possessed gun further a drug-trafficking offense by providing the dealer, his stash, or his territory with protection. United States v. Huddleston, 593 F.3d 596, 602 (7th Cir.2010). The appellant correctly argues that the mere presence of a firearm in a home or location where drugs are sold is not itself sufficient to prove the “in furtherance of’ prong of the statute and that there must be some nexus or connection between the firearm and the drug-selling operation. In determining whether a nexus exists, this Court applies basic common sense and considers particular factors as set forth in United States v. Seymour. The Seymour factors include: (1) the type of drug activity that is being conducted; (2) accessibility of the firearm; (3) the type of weapon possessed; (4) whether the weapon is stolen; (5) the status of the possession (legitimate or illegal); (6) whether the gun is loaded; (7) proximity to drugs or drug profits; and (8) the time and circumstances under which the gun is found. United States v. Seymour, 519 F.3d 700, 715 (7th Cir.2008). At trial, the prosecution presented evidence to the jury that Eller built and ran a marijuana grow operation from his home, valued in the thousands of dollars, and that the operation was protected by a" } ]

[ { "docid": "5534181", "title": "", "text": "§ 924(c)(1) convictions, in effect requesting that we find that the erroneous jury instruction was harmless. An erroneous jury instruction is harmless if, looking at the instructions and the record as a whole, we are convinced that a properly instructed juiy would have reached the same verdict. See, e.g., United States v. Williams, 33 F.3d 876, 879 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1383, 131 L.Ed.2d 236 (1995); United States v. Goines, 988 F.2d 750, 773 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993). Because the evidence was sufficient to convict the defendants, but we are not convinced that a properly instructed jury would have done so, we conclude that the proper course is to reverse the § 924(c)(1) convictions and remand for a new trial. The evidence produced at trial was sufficient to sustain the convictions under § 924(c)(1) for “using or carrying” a firearm in relation to the drug conspiracy. One witness testified that Jerome Bray, an alleged conspiracy member, once brought a handgun with him to chase competing dealers away from the place where he was dealing drugs. This conduct clearly constitutes “carrying” a firearm in relation to the drug conspiracy. See United States v. Baker, 78 F.3d 1241, 1247 (7th Cir.1996). Furthermore, the evidence showed that Bradford “used” a handgun in a shoot-out with out-of-town crack dealers who were trying to sell in the defendants’ turf. The jury could have reasonably inferred that the shoot-out was drug-related, despite testimony to the contrary. On the other hand, the government presented extensive evidence at trial that may have led the jury to convict the defendants under the incorrect instruction. Various witnesses testified that Story, Thomas, and Bradford owned handguns, which they kept at home to protect their drugs and drug proceeds. Some of the street dealers involved in the conspiracy also testified that they had guns for protection against other drug dealers. Contrary to the jury instructions, this evidence of mere possession could not establish “use” within the meaning of § 924(c)(1), as defined by Bailey. — U.S. at" }, { "docid": "13893771", "title": "", "text": "date, he is alleged to have unlawfully possessed the SCCY pistol (Count Twenty), to have possessed with intent to distribute cocaine (Count Twenty-One), and to have possessed a firearm while distributing the cocaine (Count Twenty-Two). Counts Twenty-Four and Twenty-Five are also gun and drug, trafficking charges. Count Twenty-Four charges Johnson with knowingly possessing'with intent to distribute a Schedule I controlled substance analogue within 1,000 feet óf a public housing complex on May 14, 2015,- while the next count charges him with possessing the Glock in relation to that drug trafficking crime. Finally, Counts Twenty-Three and Twenty-Six are felon-in-possession charges against Johnson. In Count Twenty-Three he is alleged to have possessed DRT (Dynamic Research Technologies).45 caliber ammunition on March 20, 2015, while in Count Twenty-Six he is alleged to have possessed the Glock between that date and May 143,2015. II. Parties’ Positions Defendants’ positions regarding severance cover the waterfront: Braden “requests severance of Counts 1-7 of the Second Superseding Indictment” and asks for “a separate trial from all other defendants[.]” (Doc. No. 159 at 1). , ... Brandon argues that-“the charges credited to [him], Haji-Mohamed and Bradford in Counts 8 through 17 are unrelated to the offenses levied against the other defendants in the indictment,” and therefore those counts should be severed. (Doc. No. 168 at 3). Johnson requests “an Order severing: (1) Count Twenty-Three (possession of ammunition); (2) Count .Twenty-Four (Possession with intent in school/public housing zone);, .(3) Count Twenty-Five (Possession of Firearm in furtherance of drug trafficking); and Count Twenty-Six, (Possession of a Firearm) from the other counts of the indictment, so that counts 23, 24, 25 and 26 against Reginald Johnson may be tried together apart from the remaining indictment and defendants.” (Doc. No. 169 at 1). Bradford asks the Court to sever “Counts 14-16 and 18-22 from all remaining counts and Defendants in the second superceding [sic] indictment and requests a separate trial on these counts from the other Defendants.” (Doc. No. 172 at 1). Haji-Mohamed requests that Count Fourteen through Twenty Six be severed because “[t]here is no a single conspiracy linking counts 14-26 with Mr." }, { "docid": "16999753", "title": "", "text": "because judges never ask for it, and judges never ask about credibility information that is never presented to them. Notwithstanding these flaws, we agree with the district court that there was enough to find probable .cause for this search warrant because the Boner information was recent and specific, because he appeared before the judge, and because there was no damning information about Boner’s credibility for the police to omit. Accordingly, we affirm the denial of the motion to suppress, which effectively defeats Musgraves’s challenge to his Count 3 conviction for possession of ammunition as a felon. II. Sufficiency of Evidence for Conspiracy, Possession of Firearm, and Drug Distribution With the challenge to the warrant settled, we turn now to the charges arising from Musgraves’s second arrest, which occurred in November 2013. He argues that the government failed to offer sufficient evidence to convict him of conspiracy to distribute cocaine (Count 2 of the Indictment), being a felon in possession of a firearm (Count 4), and cocaine distribution (Count 5). At trial, Musgraves moved for judgment of acquittal at the close of evidence, and the district court denied the motion. Musgraves appeals the denial as to all three counts. We may reverse for insufficient evidence only if no rational jury could have found the essential elements of the crime beyond a reasonable doubt. United States v. Bloch, 718 F.3d 638, 641-42 (7th Cir. 2013), quoting United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). On these three charges, Musgraves has met that high standard. The government proved the existence of a simple buyer-seller relationship between Musgraves and Stevens but not a drug distribution conspiracy. The firearm possession and cocaine distribution convictions both depended on conjecture, which cannot support proof beyond a reasonable doubt. A. Conspiracy to Distribute Cocaine (Count 2) Musgraves was convicted of conspiring with Romell. Stevens to distribute cocaine from February 2013 until Mus-graves’s first arrest in July 2013. To prove a conspiracy, the government must demonstrate that the defendant knowingly and intentionally joined in an agreement with at least one other person to distribute drugs. United" }, { "docid": "3407112", "title": "", "text": "abetted, a desire to help the activity succeed, and some act of helping. Zafiro, 945 F.2d at 887. In this case, however, the point is largely academic for we think that the indictment can fairly be read to charge Carson with the crime of conspiracy. While the indictment states that Carson “aided and abetted” the other defendants, the portion of the charge that follows makes clear that all of the defendants were charged with violating 21 U.S.C. § 846, which makes it a crime to conspire to violate § 841, which, in turn, outlaws the possession of drugs with the intent to distribute. Specifically, after listing the defendants, Count One goes on to state that “defendants herein, did knowingly combine, conspire, and agree together, ... to knowingly and intentionally distribute and possess with intent to distribute various quantities of cocaine....” Any doubt as to what Carson was charged with in Count One is dispelled by Count Two, which charges each defendant with possession of a firearm “during and in relation to a drug-trafficking crime, to wit: conspiracy to distribute and possess with intent to distribute various quantities of cocaine-” (emphasis added). Because we think an objective reading of the indictment indicates that Carson was charged with conspiracy, we reject the argument that the reference to aiding and abetting in Count One was anything other than surplusage. The language of the indictment itself provided the district court with a sufficient basis for giving instruction twelve. For this reason, there is no jurisdictional defect and the court did not impermissibly amend the indictment. Carson also claims that insufficient evidence supports his conviction for conspiracy. Conspiracy law punishes agreements to commit crimes. United States v. Lechuga, 994 F.2d 346, 348 (7th Cir.1993) (en banc); United States v. Blankenship, 970 F.2d 283, 285 (7th Cir.1992). To sustain a conspiracy conviction, the government must provide substantial evidence that a conspiracy existed and that Carson knowingly agreed to join it. United States v. Pazos, 993 F.2d 136,139 (7th Cir.1993). For his part, Carson does not contest that the government proved the existence of an agreement to" }, { "docid": "19195775", "title": "", "text": "defendants possessed firearms in furtherance of the conspiracy alleged in count one.... Now, the term in furtherance of, means to advance, move forward, promote, or facilitate the drug trafficking crime. For example, if you determine that based upon the evidence in this case, that the defendant possessed the firearm and that he did so at least in part to protect his drugs, his drug proceeds, or himself, from competing drug dealers or the police, or that he possessed the firearm for some other reason, which in some way moved forward, advanced, promoted or facilitated the drug trafficking crimes listed in the indictment, then the defendant possessed the firearm in furtherance of a drug trafficking crime. If, however, based upon the evidence in this ease, you find that the defendant did not possess a firearm on or about the date set forth in the indictment or that the firearm was present only for some other purpose, or by mere coincidence, or that the Government failed to prove this element of the offense beyond a reasonable doubt, then, you must find the defendant not guilty on that count. This language unambiguously requires the jury to find a nexus between Williams’ possession of a firearm and the charged drug conspiracy, and Williams’ claim is therefore without merit. The prosecution argued at trial that the required nexus existed because the kidnapping was perpetrated by individuals knowledgeable about the conspirators’ drug trafficking, and the conspirators’ response to the kidnapping— including the possession of a firearm by Williams — was a response to a threat to the drug conspiracy. Williams was free to dispute this theory at trial. The District Court properly instructed the jury on the firearm possession charge, and Williams has not established plain error on this point. II. Relatedly, Williams argues that the evidence at trial was insufficient as a matter of law to convict him of possession of a weapon in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). We review this claim for plain error because Williams did not raise the issue in the District Court. Guadalupe, 402" }, { "docid": "11006111", "title": "", "text": "and marijuana found on Johnson. The prosecutor also stated that Johnson “had a smorgasbord of other drugs with him. He had some heroin, he had some cocaine. He was a walking drug store.” Johnson argues that this statement led jurors to believe that Johnson’s possession of heroin was a separate crime for which they could convict him. We do not find this argument persuasive. This case is not like, contrary to Johnson’s argument, United States v. Leichtnam, 948 F.2d 370 (7th Cir.1991). There, we reversed a conviction because the indictment charged the defendant with using a particular Moss-berg rifle in conjunction with a drug trafficking crime, but, following a trial at which two firearms other than the Mossberg were introduced into evidence, the court instructed the jury that it had only to find that the defendant used or carried any firearm to convict him. The specificity of the indictment permitted a conviction in that case only if the jury found that the defendant carried or used the Mossberg. We concluded that there was no way of knowing if the jury convicted the defendant because it found he used or carried the Mossberg or because it found he used or carried one of the other guns. Id. at 380-81. Here, the court first instructed the jury as to the indictment against Johnson: The defendant Peter L. Johnson is charged with the crimes of possession of crack cocaine with the intent to distribute, possession of marijuana with intent to distribute, and using and carrying a firearm during and in relation to a drug trafficking crime. Later, the court instructed the jury as to what it had to find in order to convict Johnson: Turning now to the remaining counts of the indictment. To sustain the charge that a defendant possessed an illegal drug with intent to distribute it, as alleged in Counts Three, Five, and Six of the indictment, the Government must prove the following propositions: First, that the defendant you are considering knowingly possessed the drug charged at the time and place alleged; second, that at the time the defendant you" }, { "docid": "16999754", "title": "", "text": "of acquittal at the close of evidence, and the district court denied the motion. Musgraves appeals the denial as to all three counts. We may reverse for insufficient evidence only if no rational jury could have found the essential elements of the crime beyond a reasonable doubt. United States v. Bloch, 718 F.3d 638, 641-42 (7th Cir. 2013), quoting United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). On these three charges, Musgraves has met that high standard. The government proved the existence of a simple buyer-seller relationship between Musgraves and Stevens but not a drug distribution conspiracy. The firearm possession and cocaine distribution convictions both depended on conjecture, which cannot support proof beyond a reasonable doubt. A. Conspiracy to Distribute Cocaine (Count 2) Musgraves was convicted of conspiring with Romell. Stevens to distribute cocaine from February 2013 until Mus-graves’s first arrest in July 2013. To prove a conspiracy, the government must demonstrate that the defendant knowingly and intentionally joined in an agreement with at least one other person to distribute drugs. United States v. Pulgar, 789 F.3d 807, 813 (7th Cir. 2015), citing Johnson, 592 F.3d at 754. The problem here is that, without more, a buyer and a seller in a simple drug deal are not engaged in a conspiracy. Rather, the government must produce evidence of “an agreement to distribute drugs that is distinct from evidence of the agreement to complete the underlying drug deals.” Pulgar, 789 F.3d at 812 (emphasis in original), quoting Johnson, 592 F.3d at 755. Merely agreeing to exchange drugs for money or property is simply “the crux of the buyer-seller transaction” and “insufficient to prove a conspiracy.” United States v. Kincannon, 567 F.3d 893, 897 (7th Cir. 2009), citing United States v. Colon, 549 F.3d 565, 567-68 (7th Cir. 2008). As we said in United States v. Pul-gar, we actively police this distinction. 789 F.3d at 813, citing Johnson, 592 F.3d at 759 (vacating drug conspiracy conviction), Colon, 549 F.3d at 569-72 (same), United States v. Contreras, 249 F.3d 595, 601-02 (7th Cir. 2001) (same), United States v. Rivera, 273" }, { "docid": "22943469", "title": "", "text": "for this court to question the admission of the handguns evidence. See United States v. Garver, 809 F.2d 1291, 1297 (7th Cir.1987) (“The district court has broad discretion to determine the admissibility of evidence, and ... we will reverse the court’s evidentiary rulings only upon a clear showing of abuse of discretion.” (citations omitted) (emphasis added)). Thus, the receipt of the handguns evidence was entirely proper when establishing Leicht-nam’s involvement in the drug conspiracy. See, also, United States v. Edwards, 885 F.2d 377, 389 (7th Cir.1989) (holding that during a search the “police could reasonably have believed that [firearms] were part of the suspected cocaine dealing operation”). Even considered on its merits, however, Leichtnam’s constructive amendment argument does not warrant reversal of his firearms conviction. According to the majority’s reasoning, the constructive amendment occurred in two steps. First, the prosecution introduced evidence that the defendant violated § 924(c) by using handguns (in addition to the Mossberg rifle) in connection with his drug trafficking scheme. The prosecution presented as exhibits two handguns found in the defendant’s home during the same search which uncovered the Moss-berg rifle. The handguns were found in the same room as the rifle. The majority raises no questions about the legality of that search. Having allowed evidence of these two handguns to be received, the trial judge, according to the majority, committed a reversible error when he gave the jury the following instruction on the firearms charge: [I]n order to establish that crime the government must prove the following propositions. First, that the defendant committed the [cocaine possession and distribution] conspiracy charged in Count 1. Two, that the defendant intentionally used or carried a firearm and; Three that this firearm was used or carried during and in relation to the conspiracy. The majority asserts that, given the introduction of evidence as to other guns, the judge’s failure to specify in his charge that the firearms indictment pertained only to the Mossberg rifle amounted to a constructive amendment of the indictment, even though the defense counsel did not object to the instructions much less request and/or offer any" }, { "docid": "22897908", "title": "", "text": "Mr. Bobb and other individuals were part of a single conspiracy with multiple objectives, as charged in the indictment. As to the amount of drugs, several witnesses testified as to the quantities of crack cocaine that Mr. Bobb possessed and distributed in furtherance of the conspiracy. Other circumstantial evidence presented by a number of witnesses supports an inference that Mr. Bobb indeed was aware of the approximately 7 kilograms of cocaine smuggled by his co-conspirators. Moreover, the jury specifically found that the conspiracy involved more than 5 kilograms of cocaine and 1.5 kilograms of crack cocaine. B. Possession or Use of a Firearm in Furtherance of a Drug Trafficking Felony The essential elements of a violation of 18 U.S.C. § 924(c) of which Mr. Bobb also was convicted are (1) the defendant committed either the crime of conspiracy to distribute and possess with intent to distribute a controlled substance or the crime of possession with intent to distribute; (2) the defendant knowingly possessed a firearm; and (3) the defendant knowingly possessed the firearm in furtherance of the crime of conspiracy to distribute or in furtherance of the crime of possession with intent to distribute. To support a conviction under this statute, the Government must show that the firearm was possessed by the defendant to advance or promote criminal activity. United States v. Lawrence, 308 F.3d 623, 630 (6th Cir.2002) (“Merely determining that the defendant was in possession of a sidearm is not enough to support the conviction; we must also consider whether the weapon was possessed ‘in furtherance of ... a drug trafficking crime.’ ”). In making this determination, the following nonexclusive factors are relevant: the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found. United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004) (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.2000)). Mr." }, { "docid": "21839288", "title": "", "text": "rare instances in which the evidence was so speculative that justice demanded a new trial. See e.g., Peterson, 823 F.3d at 1122. B. The firearms charges. In addition to returning a finding of guilt on the conspiracy charges, the jury also found Conley guilty both of possessing a firearm in furtherance of a drug trafficking crime and of being a felon in possession of a weapon. As with the conspiracy charges, Conley argues that the government failed to meet its burden of establishing sufficient evidence to support his conviction on these charges. In order to convict Conley for possessing the firearm during a drug crime, the government had to prove beyond a reasonable doubt that the defendant possessed a gun and used it in relation to a drug offense. 18 U.S.C. § 924(c); United States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005). Possession of a weapon may be actual or constructive where the latter “may be established by demonstrating that the defendant knowingly had the power and intention to exercise dominion and control over the [gun], either directly or through others, thus establishing a nexus between himself and the [gun].” United States v. Jones, 872 F.3d 483, 489 (7th Cir. 2017), citing United States v. Katz, 582 F.3d 749, 752 (7th Cir. 2009). We agree with the district court that the evidence of actual or constructive possession was meager. The government presented no evidence that Conley handled any weapons. His fingerprints did not appear on any firearms or the toolbox. The government argues instead that the guns went into the toolbox in a certain order but were in a different order when the police seized them, indicating that they had been moved around in the back of a crowded van in which three grown men, including Conley, were squeezed one on top of another. If the guns had been moved, the government implies, Conley must have seen them. They support this implication with Conley’s agitated behavior when questioned about the toolbox. This is a drop of circumstantial evidence indeed, but not more. More convincing is the govern- merit’s" }, { "docid": "5534198", "title": "", "text": "130 L.Ed.2d 196 (1994). VI. In conclusion, we Affirm the defendants’ conspiracy, CCE, and distribution convictions, and Reverse the defendants’ convictions under 18 U.S.C. § 924(c). Accordingly, we Remand for a new trial on the § 924(c) count and for resentencing on all counts so that the district court can “reconsider its plan as a whole in sentencing.” United States v. Lowry, 971 F.2d 55, 66 (7th Cir. 1992). . The distribution charge was based on a specific incident where Garnett sold an ounce of crack to an undercover police officer for $1400. The sale was assisted by Bobby Schultz, a police informant who arranged with Thomas for the crack to be delivered to the police by Garnett. . Some witnesses also testified that Thomas claimed he was a member of the Mafia Insane Vice Lords. . The record is not clear as to whether Bray actually brandished the handgun in his efforts to drive out the competing dealers. . The shoot-out ensued after Bradford physically assaulted the rival dealers, in retaliation for their hitting Cameron Riley, Bradford’s cousin and an admitted street dealer for the conspiracy. Riley and Bradford both testified on cross examination that this incident was unrelated to their drug-dealing activities. . Other witnesses briefly mentioned anonymous hang-ups and threats, without objection from the defendants. . The defendants argue that they did not personally use or carry any firearms. This argument, however, completely ignores the Pinkerton doctrine, which makes defendants liable for the actions of their co-conspirators that were done in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). In fact, we have specifically found that ‘‘[a] conspirator in a drug conspiracy can be held liable for a coconspirator’s § 924(c) violation because it is reasonably foreseeable that a firearm may be carried during a drug transaction.” United States v. Pazos, 993 F.2d 136, 141 (7th Cir.1993). The defendants do not present a plausible argument that the evidence was insufficient to support their conspiracy convictions. . The distribution conviction was based on evidence of a controlled" }, { "docid": "19195776", "title": "", "text": "then, you must find the defendant not guilty on that count. This language unambiguously requires the jury to find a nexus between Williams’ possession of a firearm and the charged drug conspiracy, and Williams’ claim is therefore without merit. The prosecution argued at trial that the required nexus existed because the kidnapping was perpetrated by individuals knowledgeable about the conspirators’ drug trafficking, and the conspirators’ response to the kidnapping— including the possession of a firearm by Williams — was a response to a threat to the drug conspiracy. Williams was free to dispute this theory at trial. The District Court properly instructed the jury on the firearm possession charge, and Williams has not established plain error on this point. II. Relatedly, Williams argues that the evidence at trial was insufficient as a matter of law to convict him of possession of a weapon in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). We review this claim for plain error because Williams did not raise the issue in the District Court. Guadalupe, 402 F.3d at 410 n. 1. The evidence at trial supporting the firearm possession charge was related to the Penrose Plaza incident. Williams asserts that the connection between that incident and the drug conspiracy was too tenuous for the jury to reasonably find that the gun possession was in furtherance of the conspiracy. This Court has held that under § 924(c), the government’s evidence “must demonstrate that possession of the firearm advanced or helped forward a drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004). Here, the government presented evidence that the kidnappers demanded $30,000 and a kilogram of cocaine in exchange for the kidnapped individuals, and that several members of the conspiracy drove in search of the kidnappers and eventually opened fire. It was not unreasonable for the jury to conclude that the conspirators viewed the kidnapping as a threat to their drug enter prise, and that they used firearms at least in part to protect and advance the drug-trafficking conspiracy. See United States v. Baptiste, 264 F.3d 578, 588 (5th" }, { "docid": "22853432", "title": "", "text": "the evidence established each defendant’s participation in at least one conspiracy a defendant’s substantial rights are affected only if the defendant can establish reversible error under general principles of joinder and severance.” Id. (quoting United States v. Jensen, 41 F.3d 946, 956 (5th Cir.1994)); United States v. Faulkner, 17 F.3d 745, 762 (5th Cir.1994); see also Morrow, 177 F.3d at 291. Keyon Mitchell has not demonstrated error under the rules of joinder and severance; indeed, he acknowledges that his trial was initially properly joined with Duford Mitchell’s. Furthermore, any risk of prejudice was minimized by the district court’s instruction to the jury that it must acquit if it were to find that a defendant was not a member of the charged conspiracy, even if it were to find that the defendant was a member of some other conspiracy. See Morrow, 177 F.3d at 291-92; Morris, 46 F.3d at 417-18. C. Count Two (Firearms) Both Keyon Mitchell and Duford Mitchell contend that there was a material variance between count two of the indictment, which charged them with possession of a firearm in furtherance of a drug-trafficking crime, and the government’s proof at trial. We conclude that although there was a variance, it was not prejudicial. Count two charged that “[o]n or about October 1, 2003,” the defendants violated 18 U.S.C. § 924(c)(1) by “knowingly possessing] a firearm in furtherance of a drug trafficking crime ..., to wit: possession with intent to distribute more than 50 grams or more [sic] of a cocaine mixture or substance containing a detectable amount of cocaine base, namely, crack cocaine, a Schedule II controlled substance.” The defendants assert that there was a material variance because the government never proved that they committed the drug-trafficking crime named in the indictment, possession with intent to distribute, since there was no evidence they actually possessed crack cocaine on October 1, 2003. The defendants point to the fact that although they participated in a break-in of Robinson’s home in an effort to steal his crack cocaine, they never found it, and therefore they never possessed it. The defendants also maintain" }, { "docid": "19195774", "title": "", "text": "The District Court’s instruction on multiple conspiracies was thorough, and there was no need to repeat it a second time. We conclude that there was no plain error in the District Court’s instruction on multiple conspiracies. Williams also argues that the District Court’s instructions on the firearm charge were inadequate. He claims that the evidence at trial suggested a lack of nexus between the drug conspiracy and Williams’ use of a firearm, and that the District Court should have stated explicitly that such a nexus was required for conviction on the firearm charge. The judge gave the jury the following instruction, among others, on the firearm charge: Now, the Government must prove the following elements beyond a reasonable doubt. One, the defendant knowingly committed a drug trafficking crime; two, the defendant knowingly possessed at least one firearm; three, the possession was in furtherance of the drug trafficking crime. Now, the first element that the Government must prove beyond a reasonable doubt is that the defendant committed a drug trafficking crime. The Government alleges that the defendants possessed firearms in furtherance of the conspiracy alleged in count one.... Now, the term in furtherance of, means to advance, move forward, promote, or facilitate the drug trafficking crime. For example, if you determine that based upon the evidence in this case, that the defendant possessed the firearm and that he did so at least in part to protect his drugs, his drug proceeds, or himself, from competing drug dealers or the police, or that he possessed the firearm for some other reason, which in some way moved forward, advanced, promoted or facilitated the drug trafficking crimes listed in the indictment, then the defendant possessed the firearm in furtherance of a drug trafficking crime. If, however, based upon the evidence in this ease, you find that the defendant did not possess a firearm on or about the date set forth in the indictment or that the firearm was present only for some other purpose, or by mere coincidence, or that the Government failed to prove this element of the offense beyond a reasonable doubt," }, { "docid": "20375990", "title": "", "text": "While the evidence may not have been overwhelming, it was sufficient to support the jury’s verdict. Because the record is not “devoid of evidence from which a reasonable jury could find ... beyond a reasonable doubt” that Huddleston intended to distribute the drugs found in his possession, his conviction on Count 1 of the superseding indictment must be upheld. Brown, 7 F.3d at 656. C. Sufficiency of the Evidence Challenge to Count 3 Finally, Huddleston challenges his conviction for possession of a firearm in furtherance of a drug-trafficking crime on the ground of insufficient evidence. We have explained that “[t]he ‘in furtherance of element requires that the weapon further, advance, move forward, promote or facilitate the drug-trafficking crime.” Duran, 407 F.3d at 840. The mere presence of a weapon at the scene of a drug crime is not sufficient to satisfy the ‘in furtherance of element; “there must be ‘a showing of some nexus between the firearm and the drug selling operation’ ”—for example, “that a possessed gun [furthered] a drug-trafficking offense by providing the dealer, his stash or his territory with protection.” Id. In distinguishing between “this type of possession-for-protection” and “circumstantial or innocent weapon possession,” we are guided primarily by common sense. Id. In addition, the following factors also may be useful to consider: “the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.” Id. (citing United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.), modified on denial of rehearing, 226 F.3d 651 (5th Cir.2000)). Here, a number of the pertinent factors support the inference that Huddleston did not possess the gun innocently, but rather to protect himself, his stash, and his profits. First, the drug activity at issue— distribution—might reasonably call for the use of a weapon for protection, both during the drug deals and afterward to protect the remaining stash and profits." }, { "docid": "20237522", "title": "", "text": "conspiracy’s purpose”). Moreover, that Gustama expected to find such a substantial amount of cocaine in the stash house demonstrates that he understood the goal of the conspiracy was to possess the cocaine with the intent to distribute it. See United States v. Carrascal-Olivera, 755 F.2d 1446, 1451 (11th Cir.1985) (finding that eight kilograms of cocaine was sufficient to support an inference of an intent to distribute). Therefore, we conclude that more than sufficient evidence supports the jury’s conclusion that Gustama knowingly joined a conspiracy to possess with the intent to distribute more than 500 grams of cocaine. To sustain a conviction under 18 U.S.C. § 924(c)(1)(A), as charged in Count 4, the Government must have offered sufficient evidence to prove beyond a reasonable doubt that Gustama: (1) knowingly (2) possessed a firearm (3) during and in relation to a drug trafficking crime or a crime of violence. See United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir.2008). Possession may be actual or constructive, joint or sole. United States v. Crawford, 906 F.2d 1531, 1535 (11th Cir.1990). To establish constructive possession, the Government must show that a defendant exercised ownership, dominion, or control over the firearm or the vehicle concealing the firearm. Id. “The [G]ov-ernment must also establish some nexus between the firearm and the drug trafficking offense to show possession was in furtherance of the crime.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.2004) (citing United States v. Timmons, 283 F.3d 1246, 1252-53 (11th Cir.2002)). “[Ujnder § 924(c), a defendant may be liable for a coconspirator’s possession if possession was reasonably foreseeable.” Id. at 1234 (citing United States v. Bell, 137 F.3d 1274, 1274-75 (11th Cir.1998)). To sustain Gustama’s conviction under 18 U.S.C. § 924(o), the Government must prove: (1) a conspiracy existed to commit the substantive offense; (2) Gustama knew of the conspiracy, and (3) Gustama, with knowledge, voluntarily joined it. See United States v. Thompson, 422 F.3d 1285, 1290 (11th Cir.2005). Gustama maintains that there was insufficient evidence that he ever possessed a firearm or induced or conspired with others to do so. But, the" }, { "docid": "5534182", "title": "", "text": "with him to chase competing dealers away from the place where he was dealing drugs. This conduct clearly constitutes “carrying” a firearm in relation to the drug conspiracy. See United States v. Baker, 78 F.3d 1241, 1247 (7th Cir.1996). Furthermore, the evidence showed that Bradford “used” a handgun in a shoot-out with out-of-town crack dealers who were trying to sell in the defendants’ turf. The jury could have reasonably inferred that the shoot-out was drug-related, despite testimony to the contrary. On the other hand, the government presented extensive evidence at trial that may have led the jury to convict the defendants under the incorrect instruction. Various witnesses testified that Story, Thomas, and Bradford owned handguns, which they kept at home to protect their drugs and drug proceeds. Some of the street dealers involved in the conspiracy also testified that they had guns for protection against other drug dealers. Contrary to the jury instructions, this evidence of mere possession could not establish “use” within the meaning of § 924(c)(1), as defined by Bailey. — U.S. at -, 116 S.Ct. at 508. The jury may well have relied upon this evidence in convicting the defendants. Thus, we are not convinced that a properly instructed jury would have convicted the defendants of violating 18 U.S.C. § 924(c)(1). We believe that the determination of the defendants’ guilt is best left to a properly instructed jury and therefore remand for a new trial on this count. III. The defendants do not seriously maintain that the evidence that was present ed at trial was insufficient to convict them on the conspiracy, CCE, and distribution charges. Instead, the defendants briefly raise a number of evidentiary issues, only two of which merit discussion. The defendants challenge the trial court’s admission of gang and threat evidence, arguing that the danger of unfair prejudice from this evidence substantially outweighed its possible probative value. See Fed.R.Evid. 403. Our review of a trial court’s evidentiary rulings is limited to determining whether the court abused its discretion. United States v. Butler, 71 F.3d 243, 250 (7th Cir.1995); United States v. Degaglia, 913 F.2d" }, { "docid": "21839287", "title": "", "text": "the exacting and rare determination that his testimony was incredible as a matter of law. United States v. Hayes, 236 F.3d 891, 896 (7th Cir. 2001). Such a determination is usually reserved for extreme situations wherein, for example, “it would have been physically impossible for the witness to observe what he described, or it was impossible under the laws of nature for those events to have occurred at all.” Id. Under ordinary circumstances, a defendant who has received a reduced sentence in exchange for his testimony does not present such an extreme situation, particularly when, as was the case here, the jury was informed of the agreement and could weigh the implications of it along with credibility. A finder of fact is entitled to believe the testimony of even the most dishonest of witnesses. United States v. Algee, 309 F.3d 1011, 1016 (7th Cir. 2002). After all, just as a broken clock is correct twice a day, a lying felon might also speak the truth at times. In sum, this was not one of those rare instances in which the evidence was so speculative that justice demanded a new trial. See e.g., Peterson, 823 F.3d at 1122. B. The firearms charges. In addition to returning a finding of guilt on the conspiracy charges, the jury also found Conley guilty both of possessing a firearm in furtherance of a drug trafficking crime and of being a felon in possession of a weapon. As with the conspiracy charges, Conley argues that the government failed to meet its burden of establishing sufficient evidence to support his conviction on these charges. In order to convict Conley for possessing the firearm during a drug crime, the government had to prove beyond a reasonable doubt that the defendant possessed a gun and used it in relation to a drug offense. 18 U.S.C. § 924(c); United States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005). Possession of a weapon may be actual or constructive where the latter “may be established by demonstrating that the defendant knowingly had the power and intention to exercise dominion and control" }, { "docid": "10761350", "title": "", "text": "500 or more grams of cocaine, supra Section E, there was sufficient evidence for a rational jury to find that Espinoza had the specific intent to distribute cocaine. Thus, there is sufficient evidence that he aided and abetted the brandishing of a firearm in furtherance of a drug-trafficking crime. Respardo-Ramirez also challenges the sufficiency of the evidence for his conviction on Count 7, brandishing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Unlike Espinoza, Respardo-Ramirez was not charged or convicted on Count 2. In his case, the predicate offense was the conspiracy to possess with intent to distribute cocaine. There was no evidence that Respardo-Ramirez owned, possessed, or used the firearms listed in the indictment. Santana, Espinoza, Ramirez, Gudino, and Bravo-Garcia brandished the firearm in Detroit, but Respardo-Ramirez was in Chicago at the time the others brandished their guns. Instead, the grand jury charged Respardo-Ramirez as an aider and abettor of the firearm brandishing. To find a defendant criminally liable as an aider and abettor under 18 U.S.C. §§ 2 and 924(c), the government must offer sufficient proof that the defendant “(1) [took] an affirmative act in furtherance of that [drug trafficking] offense, (2) with the intent of facilitating the offense’s commission.” Rosemond v. United States, — U.S.-, 134 S.Ct. 1240, 1245, 188 L.Ed.2d 248 (2014). Liability attaches even where the defendant aids “only one (or some) of a crime’s phases or elements.” Id. at 1247. Thus, Respardo-Ramirez’s conviction must stand if, viewing the evidence in the light most favorable to the government, there is evidence that he “fa-cilitat[ed] either the drug transaction or the firearm use (or of course both).” Id. There is one limitation: the government must also prove that the defendant knew in advance “that one of his confederates will carry a gun” to further the drug offense. Id. at 1249. Even though the government did not charge Respardo-Ramirez for possession of cocaine with intent to distribute it, the grand jury charged him for joining a conspiracy to distribute cocaine. Thus, we must affirm the firearm conviction" }, { "docid": "10761349", "title": "", "text": "jury could conclude that the victims’ hands were tied when Santana, Ramirez, and Espinoza transported them across state lines. And it is reasonable to infer that Enriquez-Enriquez and Victor did not consent to being tied up in the van as they crossed the borders of Michigan, Indiana, and Illinois. Thus, we reject Respardo-Ramirez’s argument. G. Sufficiency of the Evidence of Aiding and Abetting the Brandishing of a Firearm Espinoza and Respardo-Ramirez challenge the sufficiency of the evidence to support their convictions on Count 7, brandishing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Espinoza challenges the sufficiency of the evidence establishing that he aided and abetted the brandishing of a firearm in furtherance of a drug-trafficking crime. He argues that the government failed to prove that he had the requisite specific intent to distribute cocaine because the jury acquitted him of conspiracy to distribute cocaine. Because we hold that the evidence is sufficient to support Espinoza’s conviction on Count 2, possession with intent to distribute 500 or more grams of cocaine, supra Section E, there was sufficient evidence for a rational jury to find that Espinoza had the specific intent to distribute cocaine. Thus, there is sufficient evidence that he aided and abetted the brandishing of a firearm in furtherance of a drug-trafficking crime. Respardo-Ramirez also challenges the sufficiency of the evidence for his conviction on Count 7, brandishing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Unlike Espinoza, Respardo-Ramirez was not charged or convicted on Count 2. In his case, the predicate offense was the conspiracy to possess with intent to distribute cocaine. There was no evidence that Respardo-Ramirez owned, possessed, or used the firearms listed in the indictment. Santana, Espinoza, Ramirez, Gudino, and Bravo-Garcia brandished the firearm in Detroit, but Respardo-Ramirez was in Chicago at the time the others brandished their guns. Instead, the grand jury charged Respardo-Ramirez as an aider and abettor of the firearm brandishing. To find a defendant criminally liable as an aider and abettor" } ]

[ { "docid": "22747032", "title": "", "text": "claim that he did not know that the guns were stolen from the United States mails.” Ibid. The court therefore affirmed the District Court’s dismissal of the three possession counts by a divided vote. We granted certiorari, 429 U. S. 884, and now reverse. II In United States v. Marion, 404 U. S. 307 (1971), this Court considered the significance, for constitutional purposes, of a lengthy preindictment delay. We held that as far as the Speedy Trial Clause of the Sixth Amendment is concerned, such delay is wholly irrelevant, since our analysis of the language, history, and purposes of the Clause persuaded us that only “a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections” of that provision. Id., at 320. We went on to note that statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide “ 'the primary guarantee against bringing overly stale criminal charges.’ ” Id., at 322, quoting United States v. Ewell, 383 U. S. 116, 122 (1966). But we did acknowledge that the \"statute of limitations does not fully define [defendants’] rights with respect to the events occurring prior to indictment,” 404 U. S., at 324, and that the Due Process Clause has a limited role to play in protecting against oppressive delay. Respondent seems to argue that due process bars prosecution whenever a defendant suffers prejudice as a result of preindictment delay. To support that proposition respondent relies on the concluding sentence of the Court’s opinion in Manon where, in remanding the case, we stated that “[e] vents of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.” Id., at 326. But the quoted sentence establishes only that proof of actual prejudice makes a due process claim concrete and ripe for adjudication, not that it makes the claim automatically valid. Indeed, two pages earlier in the opinion we expressly rejected the argument respondent advances here: “[W]e need not. . . determine when and in" } ]

[ { "docid": "2124183", "title": "", "text": "public’s interest in seeing criminals punished for their antisocial behavior. Having upheld the government’s decision to terminate Hicks from the program, it follows that Hicks can be held to his waiver of his speedy trial rights. No Prejudice to Appellant Even if the waiver had not been effective, appellant’s appeal would fail. The Speedy Trial Act was not violated because the period between the dismissal of the original indictment and the reindictment is not counted. 18 U.S.C. § 3161(h)(6) states: If the information or indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge [is excluded]. Thus the Act expressly excludes the period upon which Hicks’ contention depends. See United States v. Hillegas, 578 F.2d 453, 459 (2d Cir.1978). There was no Sixth Amendment violation because Hicks suffered no prejudice by the delay. The Supreme Court identified three forms of prejudice in Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972): (1) oppressive pretrial confinement; (2) anxiety and concern of the defendant; and (3) possible impairment of the accused’s ability to defend himself. 407 U.S. at 532, 92 S.Ct. at 2192. Hicks does not allege any pretrial incarceration. We do not think the second element can realistically be applied here, since the charges that would subject Hicks to undue anxiety were pending only hypothetically. Justice Powell identified the third factor, prejudice to the accused’s defense as being the most serious. Hicks has not suffered any prejudice. At trial, his sole defense was insanity. None of his witnesses suffered lapses of memory, nor has Hicks shown that any witnesses became unavailable due to delay. AFFIRMED. . Our review in this area may be limited. In probation revocation, this court has stated The evidence to support a revocation need not" }, { "docid": "8945161", "title": "", "text": "jury and later sentenced to 10 years in prison. II. Brand argues first that the 20-month preindictment delay requires reversal of his conviction and dismissal of the charges against him under either Rule 48(b) of the Federal Rules of Criminal Procedure or the speedy trial provision of the sixth amendment or the due process clause of the fifth amendment. Rule 48(b) applies only to a preindictment delay that occurs after the defendant “has been held to answer to the district court”. In this case, however, the defendant was not held to answer on the charges for which he was convicted in the district court until after the indictment. The defendant did not face arrest by federal authorities before the indictment; the state arrest alone did not trigger the Rule because it did not require Brand to answer to the federal district court. Thus, dismissal is not required by Rule 48(b) when a federal arrest has not occurred and the grand jury has returned the indictment within the period of the applicable statute of limitations. United States v. Giacalone, 6 Cir. 1973, 477 F.2d 1273; United States v. Grayson, 5 Cir. 1969, 416 F.2d 1073, cert. denied, 1970, 396 U.S. 1059, 90 S.Ct. 754, 24 L.Ed.2d 753, rehearing denied, 397 U.S. 1003, 90 S.Ct. 1114, 25 L.Ed.2d 415, and 399 U.S: 917, 90 S.Ct. 2191, 26 L.Ed.2d 576. The defendant’s sixth amendment claim also lacks merit because he was not subjected to a federal arrest until after the federal indictment.. United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, held that the speedy trial provision of the sixth amendment provides a person no protection until he becomes an accused by arrest or indictment. Accord, United States v. Lovasco,-U.S.-, 97 S.Ct. 2044, 52 L.Ed.2d 752, 1977. The Court recognized that any delay from the date of the criminal act might impair defense preparation. It might also prejudice the Government’s case. Yet the Court concluded that the amendment was directed toward other interests: [T]he major evils protected against by the speedy trial guarantee exist quite apart from actual" }, { "docid": "11902818", "title": "", "text": "in bringing them to trial. It seems odd, though, that impairing the defendant’s ability to mount an effective defense is not on the list in MacDonald of the elements of harm to the defendant from delay of trial. Although in Barker it had been considered the most important factor bearing on harm to the defendant, see 407 U.S. at 532, 92 S.Ct. at 2193, in MacDonald it was said to be “protected primarily by the Due Process Clause and by statutes of limitations,” 456 U.S. at 8, 102 S.Ct. at 1502. But in the word “primarily” (also found in the statement in the opinion that “the Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time,” id.) may be found some basis for continuing to regard such prejudice as bearing on a defendant’s right to a speedy trial. And if not, it hardly matters; we would simply construe Mitchell’s complaint as encompassing a claim that the delay in bringing him to trial violated the due process clause by interfering with his ability to defend himself against the state’s charges. Six years elapsed between Mitchell’s arrest and his trial, but this includes 16 months between the time when a grand jury in Illinois returned a “no bill” against him and the time when another grand jury in Illinois indicted him. This interval, during which no charges were pending against Mitchell in Illinois, does not count for purposes of determining whether Mitchell’s right to a speedy trial was infringed. See United States v. MacDonald, supra, 456 U.S. at 7, 102 S.Ct. at 1501. Most people against whom charges are not pending do not want a speedy — or any — trial. It is true that when the Illinois charges against Mitchell were dropped he was “released” into custody in Florida, but that does not change the principle. “[A]n arrest or indictment by one sovereign [Florida] would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign [Illinois].” Id. at 10 n. 11," }, { "docid": "4266268", "title": "", "text": "carrying a concealed deadly weapon, some or all of which offenses could clearly be completed by acts which took place at or near the Kellys’ home, and are thus independent of the federal bank robbery offense which constitutes the basis for the instant indictment. Nor does an arrest on state charges trigger the provisions of Rule 48(b), which provide for dismissal “[i]f there is unnecessary delay in presenting the charge to the grand jury or in filing an information against a defendant who has been held to answer to the district court” (emphasis added). Thus, Clark, Christian, and Griffin can have no claims based upon the Sixth Amendment’s speedy trial guarantee, nor upon Rule 48(b), for the period from February 8, 1973, the date of the incident, until August 24, 1973, the date of the instant indictment. United States v. Marion, however, does permit claims based upon the Due Process clause of the Fifth Amendment for the pre-indictment period. Id., 404 U.S. at 324, 92 S.Ct. 455. As we interpret United States v. Dukow, supra, 453 F.2d at 1330, either substantial prejudice to a defendant’s right to a fair trial, or delay as an intentional device by the prosecution to gain a tactical advantage over the accused, must be shown in order to make out a due process violation under the criteria of United States v. Marion. We stated in our oral findings and conclusions delivered on November 1, 1974 that there is not a scintilla of evidence in this record that the pre-indictment delay was “an intentional device to gain tactical advantage over the accused”, United States v. Marion, supra, 404 U.S. at 324, 92 S.Ct. at 465; hence, the only ground which would warrant dismissal of the indictment is that of substantial prejudice to the rights of these defendants to a fair trial. At the pretrial hearings in this case, defendants’ primary claim of prejudice pertained to the death of unindicted co-conspirator Thomas Clinton, which occurred July 11, 1973, between the arrest of defendants on state charges and the federal indictment. We rejected this claim at the conclusion" }, { "docid": "16466405", "title": "", "text": "LOGAN, Circuit Judge. This appeal challenges the action of the trial court in granting a pretrial motion to dismiss an indictment charging Dennis H. Revada with illegally possessing a sawed-off shotgun in violation of 26 U.S.C. §§ 5841 and 5861(d). The basis of the motion was pre-indictment delay of approximately 21 months between the discovery of the weapon and the indictment by the grand jury. The action of the district judge in the instant case must be measured by the legal principles enunciated in two Supreme Court decisions. The lodestar case on preindictment delay is United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). It was there held that the Sixth Amendment guarantee of a speedy trial does not commence until the indictment is entered. Also Fed.R.Crim.P. 48(b), treating unnecessary delay in presenting the charge to a grand jury or in bringing a defendant to trial, applies only to post-arrest delay. There appears no reliance upon either the Sixth Amendment or Rule 48(b) by defendant-appellee here. The motion for dismissal was heard and granted approximately 3V2 months after the indictment, and no arrest was made by federal authorities until the day after the April 20,1977, indictment was issued. As to due process rights under the Fifth Amendment Marion cited with approval the fact that the Government conceded dismissal would be required “if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appel-lees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” 404 U.S. at 324, 92 S.Ct. at 465. It was found that although there was a 38-month delay, the accused had not “alleged and proved” actual prejudice nor shown that the Government intentionally delayed for tactical advantage or to harass. 404 U.S. at 325, 92 S.Ct. 455. This Circuit has construed the Marion case as establishing a two-pronged due process test against which to measure preindictment delay. [T]he rights of a defendant under the due process clause of the Fifth Amendment are not violated in the" }, { "docid": "23240856", "title": "", "text": "does not now know their whereabouts. He does not name any specific potential witnesses who might have aided his defense; he has not stated what their expected testimony would be or how it would have been material to his defense. Because he was present on the boat during all of the events that were the basis for the government’s case, we can expect Pierrot to have first-hand knowledge of this information. In short, his allegations of prejudice are speculative, and therefore insufficient to merit relief. Marietta, 551 F.2d at 1354. D. Rule 48(b) Rule 48(b) of the Federal Rules of Criminal Procedure provides: If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint. In Lovasco, the Supreme Court indicated that Rule 48(b) is “ ‘limited to post-arrest situations.’ ” 431 U.S. at 789 n. 8, 97 S.Ct. at 2048 n. 8 (quoting Marion, 404 U.S. at 319, 92 S.Ct. at 463). As we noted with respect to Pierrot’s claims under the Sixth Amendment and the Speedy Trial Act, the arrest must be the one for which the defendant seeks the indictment dismissed, otherwise any delay is unrelated to the relief requested. Thus this is not a “post-arrest situation” to which Rule 48(b) applies. IV. ADMISSION OF VOODOO EVIDENCE The trial court did not abuse its discretion in admitting evidence of the voodoo ceremony and the disappearances of Vixamar and Alliance. See U.S. v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983). To prove the offenses charged the prosecution had to show that Pierrot was more than simply a passenger who steered the boat from time to time. The government had to convince the jury that he was in control of the transporting scheme, a smuggler rather than a passenger. In addition, this evidence had to be sufficient to prove the elements of conspiracy, including the agreement to commit the" }, { "docid": "2929606", "title": "", "text": "contend that MacDonald applies only to Sixth Amendment claims and that Rule 48(b) has a broader reach than the constitutional requirement. They point out that various courts have applied the Barker v. Wingo balancing test to Rule 48(b) cases. The defendants argue that the district court erred in refusing to receive and consider evidence of personal hardships brought about by delay. We note that the cases relied upon by the defendants involved facts which were quite different from those found in the record before us. For example, the defendant in United States v. McLemore, 447 F.Supp. 1229 (E.D. Mich.1978), had been in custody for more than a year prior to his indictment. In United States v. Starr, 434 F.Supp. 214 (D.D.C.1977), the court found that serious prejudice had been caused to the defendants’ ability to defend themselves because two important witnesses had disappeared in the 13 months between arrest and indictment. In this case the defendants were not incarcerated and were not subject to bail requirements; the charges had been dismissed and their bonds cancelled. Under MacDonald prejudice of the type which the defendants sought to establish is insufficient to require dismissal. The defendants do not claim unnecessary delay between their indictment and their trial. They focus on the period between arrest and indictment, most of which need not be considered with respect to their claim of personal hardship because there were no charges pend ing. The district court did not err in excluding evidence of anxiety and concern which resulted only from the fact that the defendants were under criminal investigation. Like the defendant in MacDonald, they were in the same position as if no charges had been made. The defendants concede that they were unable to establish actual prejudice to their ability to defend or intentional delay to gain some tactical advantage or to harass them. See United States v. Marion, supra, 404 U.S. at 325, 92 S.Ct. at 466. Under the circumstances presented in this case it was not an abuse of discretion to deny the motion to dismiss. Cf. United States v. Giacalone, 477 F.2d 1273" }, { "docid": "23522652", "title": "", "text": "nothing here. Because appellants were not arrested on the attempted bank robbery charges until after the indictments for those charges were returned, as in Marion it is the indictment’s date, December 5, 1969, on which appellants became accused for the purpose of computing pretrial delay cognizable under the Sixth Amendment. Similarly appellants fare no better under Rule 48(b) of the Federal Rules of Criminal Procedure which authorizes dismissal of an indictment for unreasonable delay in presenting a charge to the grand jury because “[t]he rule is clearly limited to post-arrest situations.” United States v. Marion, supra at 319, 92 S.Ct. at 463. The preindictment delay herein was well within the applicable statute of limitations, which remains the primary yardstick for measuring pre-accusation delays to prevent possible prejudice. Id. at 322-323, 92 S.Ct. 455. Furthermore, appellants have not shown that the preindictment delay in this case caused substantial prejudice to their rights to a fair trial and that the delay was an intentional device to gain technical advantage over the accused. Therefore, the due process clause of the Fifth Amendment also does not require dismissal of the indictment. Id. at 324, 92 S.Ct. 455. There was a nineteen-month delay between the indictment and appellants’ trial. Understandably, the Government wished to try appellants together, but Askins’ whereabouts were unknown at least from April 1970 until January 14, 1971, when he was found in Florida driving a stolen automobile. By absconding a few months after his parole from the Illinois State Penitentiary in Joliet, Askins clearly waived his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 528, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (decided June 22, 1972). Although counsel was appointed for Askins on March 30, 1971, his motion to dismiss the indictment for want of speedy trial was not filed until July 12, 1971, just the day before the case was called for trial, and apart from the dates relied upon by the counsel, neither the motion nor supporting affidavit showed any reason to grant it. For these reasons, the time lapse between his arrest in Florida in" }, { "docid": "2929605", "title": "", "text": "attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, “a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.” United States v. Marion, 404 U.S., at 321 [92 S.Ct., at 464]. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation. Id. at 8-9, 102 S.Ct. at 1502 (footnotes omitted). Chief Justice Burger summarized the Court’s holding by pointing out that once the first set of charges against the defendant were dismissed he “was legally and constitutionally in the same posture as though no charges had been made.” Id. at 10, 102 S.Ct. at 1503 (footnote omitted). The defendants contend that MacDonald applies only to Sixth Amendment claims and that Rule 48(b) has a broader reach than the constitutional requirement. They point out that various courts have applied the Barker v. Wingo balancing test to Rule 48(b) cases. The defendants argue that the district court erred in refusing to receive and consider evidence of personal hardships brought about by delay. We note that the cases relied upon by the defendants involved facts which were quite different from those found in the record before us. For example, the defendant in United States v. McLemore, 447 F.Supp. 1229 (E.D. Mich.1978), had been in custody for more than a year prior to his indictment. In United States v. Starr, 434 F.Supp. 214 (D.D.C.1977), the court found that serious prejudice had been caused to the defendants’ ability to defend themselves because two important witnesses had disappeared in the 13 months between arrest and indictment. In this case the defendants were not incarcerated and were not subject to bail requirements; the charges had been dismissed and their bonds cancelled." }, { "docid": "22638458", "title": "", "text": "has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U. S. 64 (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U. S. 783, 788-789 (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause. The Court identified the interests served by the Speedy Trial Clause in United States v. Marion, supra, at 320: “Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” See also Barker v. Wingo, 407 U." }, { "docid": "2929603", "title": "", "text": "limited to prejudice which interferes with the defendant’s ability to mount and present a defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The government responds that Rule 48(b) does not apply to the period between arrest and indictment where the charges have been dismissed subsequent to arrest. The prompt dismissal of all charges after arrest required that the delay before indictment be tested by due process standards under guidelines established in Marion and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the government contends. Under those guidelines, the government argues, dismissal is not required upon a showing of the type of hardship relied upon by these defendants. Therefore, it was not error to exclude the testimony of the defendants’ wives. B. Rule 48(b) comes into play when there is unnecessary delay in presenting a charge to a grand jury “against a defendant who has been held to answer to a district court .... ” In this case we have defendants who were held to answer charges in 1980. However, the charges were not pending during the entire period between their arrest and their indictment. In fact, they were pending only from January 18 until March 21, 1980. None were pending from March 21, 1980 to April 15, 1982. This fact is significant. In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the Supreme Court held that the Sixth Amendment right to a speedy trial does not apply to a period between the dismissal of charges and the institution of new charges: Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Manon, where the defendants had been subjected to a lengthy investigation which received considerable press" }, { "docid": "23159323", "title": "", "text": "prior Supreme Court cases approved in Maze. While inquiries to Cosmopolitan were aimed at detecting any fraud which might exist, it was necessary to permit such inquiries to persuade some victims that the trust was as represented. Defendants were found to have arranged favorable replies to such inquiries, so that these mailings were also in furtherance of the scheme. Maze does not affect the foregoing analysis of the mailings involved in this appeal. Pre-Indictment Delays Defendants claim that their rights under the Sixth Amendment and Rule 48(b) of the Rules of Criminal Procedure were violated by the 34-month delay between the first presentation of the case to the grand jury and the return of the indictment. However, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, establishes that the Sixth Amendment speedy trial provision has no application until defendants are accused, either by indictment, information, or arrest. Marion also decided that Rule 48(b) is limited to post-arrest situations. Id. at 319. Defendants claim that they were accused when the case was first presented to the grand jury. But Marion clearly did not consider such “targeting” an accusation which triggers the right to a speedy trial. In Marion, newspapers stories in October 1967 quoted the United States Attorney as saying the matter was under investigation and indictments would be forthcoming. In summer 1968, Marion delivered his company’s records. to the United States Attorney and was interviewed about the case. Id. at 309. The Court held that there was no accusation until Marion was indicted on April 21, 1970. Id. at 313. The Marion opinion did say that the due process clause requires dismissal of an indictment if pre-indictment delays caused substantial prejudice to defendants’ right -to a fair trial and were an intentional device to gain tactical advantage over them. Id. at 324. Here the pre-indictment delays did not extend beyond the period of the applicable statute of limitations, and Marion clearly implies that the limitations period is the only protection against delay unless specific prejudice is shown. Two district judges, one before trial and one after," }, { "docid": "297234", "title": "", "text": "upon United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The District Court, however, found that Rule 48(b) is broader than the Sixth Amendment when applied to the pre-indictment period and concluded that the Government had offered inadequate explanation for what the Court found to have been dilatory tactics. We are of the opinion that the District Judge misapplied Rule 48(b). Clearly, the application of Rule 48(b) was not an issue in Marion. However, in the Marion decision, 404 U.S. at 312, 92 S.Ct. at 459, Footnote 4, the Court said: “In any event, it is doubtful that Rule 48(b) applies in the circumstances of this case, where the indict ment was the first formal act in the criminal prosecution of these appellees.” and further at page 319, 92 S.Ct. at 463, the Supreme Court had the following to say in regard to Rule 48(b): “No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Rule 48(b) of the Federal Rules of Criminal Procedure, which has the force of law, authorizes dismissal of an indictment, information or complaint ‘[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial. . . . ’ The rule clearly is limited to post-arrest situations.” (Emphasis added.) Footnote omitted. We point out that in this case appellee was not arrested for any violation of the income tax laws or conspiracy to violate such laws until after the Grand Jury had returned an Indictment for those offenses in January, 1972. Thus the appellee had not prior to the Indictment “been held to answer to the District Court.” This Court has previously held that Rule 48(b) is not applicable until after defendant has been held to answer to the District Court. Hoopengarner v. United States, 270 F.2d 465, 469 (6th Cir. 1959): “As to Rule 48(b) of" }, { "docid": "2929602", "title": "", "text": "their families suffered anxieties and hardships during the two-year period between arrest and indictment, and that the threat of indictment hung over them “like a sword of Damocles.” The defendants argue that the district court overlooked the fact of their 1980 arrest in holding that Rule 48(b) is inapplicable to pre-indictment delay. They rely on the statement in United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 462, 30 L.Ed.2d 468 (1971), that Rule 48(b) “clearly is limited to post-arrest situations.” (Footnote omitted). The defendants maintain that delay should be measured from their arrests on January 18, 1980 and that the “balancing test” prescribed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), should have been applied. Barker recognizes four factors which should be considered in determining whether there has been a violation of the Sixth Amendment right to a speedy trial. Prejudice is one of the factors, and in the Sixth Amendment setting prejudice consisting of anxiety and concern is to be considered. The inquiry is not limited to prejudice which interferes with the defendant’s ability to mount and present a defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The government responds that Rule 48(b) does not apply to the period between arrest and indictment where the charges have been dismissed subsequent to arrest. The prompt dismissal of all charges after arrest required that the delay before indictment be tested by due process standards under guidelines established in Marion and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the government contends. Under those guidelines, the government argues, dismissal is not required upon a showing of the type of hardship relied upon by these defendants. Therefore, it was not error to exclude the testimony of the defendants’ wives. B. Rule 48(b) comes into play when there is unnecessary delay in presenting a charge to a grand jury “against a defendant who has been held to answer to a district court .... ” In this case we have defendants who were held to answer charges in" }, { "docid": "4921019", "title": "", "text": "the delay. Barker, supra, 407 U.S. at 530, 92 S.Ct. 2182. The prejudice which enters into the speedy-trial computation is a broader notion than the prejudice to which due-process analysis is restricted. In explaining the part which this factor is to play, the Court declared: “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532, 92 S.Ct. at 2193, citing Ewell, supra, 383 U.S. at 120, 86 S.Ct. 773. Thus, the Sixth Amendment guarantee takes into account not only the type of prejudice that relates directly to fairness of the trial but also other types of harm which thé defendant may suffer as well. The Supreme Court was forcefully explicit on this point in Marion, supra, 404 U.S. at 320, 92 S.Ct. at 463, where it said, “Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.” See also U. S. v. Dreyer, 533 F.2d 112 (3d Cir. 1976); U. S. v. Brown, 172 U.S.App.D.C. 92, 520 F.2d 1106 (1975). Whether the narrower protection of the Due Process Clause or the broader protection of the Speedy Trial Clause obtains in the given case depends on whether the investigation has ripened into a prosecution, i. e., whether the proceeding has advanced to the stage where the defendant is no longer a mere suspect but has become an accused. “[T]he Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused,’ . . .” Marion, supra, 404 U.S. at 313, 92 S.Ct. at 459. This, in turn, does not occur until the defendant has been either arrested or indicted, whichever happens first. Rule 48(b) was" }, { "docid": "6421617", "title": "", "text": "the defendant has experienced anxiety during the pre-indictment delay. This court concludes that defendant has not made a sufficient showing of actual prejudice. I also note that similar arguments were raised and rejected in Sebetich, 776 F.2d at 430. IV 18 U.S.C. § 3161(b) Section 3161(b) requires that an indictment charging an individual with an offense shall be filed within thirty days from the date on which the individual was arrested in connection with such charges. In most instances an arrest on one charge does not trigger speedy trial protection with respect to other chargeable offenses against the accused. Here, the government was not obligated to bring the charges contained in 85-462 and 86-527 against Frezzo when Frezzo was arrested in 1983 in connection with the Wyeth paintings theft. See United States v. Novak, 715 F.2d 810, 817 (3d Cir.1983). In the present case, Frezzo has been incarcerated since the government first obtained the indictment in 1985. It appears that Frezzo was not arrested in connection with the present indictment. Therefore, section 3161(b) is not applicable. V Fed.R. Crim.P. 48(b) Rule 48(b) permits the trial court to dismiss an indictment where there has been unnecessary delay in presenting the charge to a grand jury or in bringing the defendant to trial. This power of dismissal is independent of constitutional considerations and is derived from the court’s supervisory authority over cases pending before it. While it is certainly true that the government obtained the present indictment with only a few days to spare (in light of the statute of limitations), this court declines to dismiss the indictment on the basis of Rule 48(b). VI The Statute of Limitations Defendant argues that the statute of limitations precludes the government from prosecuting Frezzo for receiving and concealing the rugs. The applicable limitations period is five years. See 18 U.S.C. § 3282. The court partially agrees with the defendant. More than five years elapsed between the date defendant allegedly received the rugs, March 21, 1981, and the date of the present indictment, December 30, 1986. ■ However, with respect to the concealment charge, the" }, { "docid": "2929601", "title": "", "text": "that the delay in the present case violated their due process rights under the Fifth Amendment in view of the district court’s finding that the delay did not hinder their ability to present a defense. The defendants rely exclusively on Rule 48(b), F.R. Crim.P., which provides: Rule 48. Dismissal * * % * * * (b) By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint. By its terms Rule 48(b) is discretionary and, according to the Reporter’s Notes, reflects the inherent power of courts to dismiss for want of prosecution. The defendants assert that the district court abused its discretion in denying their motion and committed error in refusing to admit tendered evidence of personal hardship caused by the delay. The proffered testimony was that of the defendants’ wives that their families suffered anxieties and hardships during the two-year period between arrest and indictment, and that the threat of indictment hung over them “like a sword of Damocles.” The defendants argue that the district court overlooked the fact of their 1980 arrest in holding that Rule 48(b) is inapplicable to pre-indictment delay. They rely on the statement in United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 462, 30 L.Ed.2d 468 (1971), that Rule 48(b) “clearly is limited to post-arrest situations.” (Footnote omitted). The defendants maintain that delay should be measured from their arrests on January 18, 1980 and that the “balancing test” prescribed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), should have been applied. Barker recognizes four factors which should be considered in determining whether there has been a violation of the Sixth Amendment right to a speedy trial. Prejudice is one of the factors, and in the Sixth Amendment setting prejudice consisting of anxiety and concern is to be considered. The inquiry is not" }, { "docid": "14482064", "title": "", "text": "Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192 (footnote omitted). Where the delay occurs at the prearrest or pre-indictment stage, however, the delay is evaluated under the due process clause and the defendant bears a heavier burden to establish a constitutional violation. “Pre-indictment delay is permissible unless it violates ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’.” United States v. Walker, 601 F.2d 1051, 1056 (9th Cir. 1979) (quoting Arnold v. McCarthy, 566 F.2d 1377, 1381 (9th Cir. 1978)). Under the due process inquiry the court must consider the reasons for the delay as well as the prejudice to the accused. Proof of prejudice is a necessary, but generally not a sufficient, element of the claim. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). Henry was arrested on December 6,1977. The complaint was dismissed, however, on December 19, 1977. An indictment was handed down on August 16,1978, over eight months after the arrest. The trial was not held for another four months, a little more than a year after the arrest. Appellant contends that he was an accused for the entire period and thus the Sixth Amendment standard applies to the entire period. The government, on the other hand, argues that when the charges were dismissed Henry was no longer an accused, and the eight-month period from dismissal to indictment should be analyzed under the due process test. The government contends that the Sixth Amendment standard is applicable only to the time between indictment and trial. Although there is case authority supporting the arguments of both parties, we need not decide under what standard to evaluate the period of time between dismissal of the charges and the indictment. It is clear that Henry’s right to a speedy trial has not been violated whichever standard is applied. Assuming arguendo that the Barker test applies to" }, { "docid": "2929600", "title": "", "text": "LIVELY, Chief Judge. These consolidated appeals present three distinct challenges to the defendants’ convictions of conspiracy to manufacture methamphetamine. Since neither defendant claims that the evidence was insufficient, the facts will be recited only to the extent required to deal with the issues actually raised. I. On January 18,1980 the defendants were arrested on a charge of conspiring and attempting to manufacture amphetamine. The arrest warrant was issued on the complaint of Thomas Powell, a special agent of the Drug Enforcement Administration (DEA). When no indictment or information was filed against the defendants within 30 days of their initial appearance on the complaint, the magistrate dismissed the complaint and cancelled the defendants’ bonds. This occurred on March 21, 1980. On April 15, 1982 the defendants were jointly indicted on seven counts for drug-related offenses arising out of the same events. One count charged conspiracy to manufacture methamphetamine. The defendants moved for dismissal of the charges because of preindictment delay. A. The defendants do not claim a violation of the Sixth Amendment. Nor do they contend that the delay in the present case violated their due process rights under the Fifth Amendment in view of the district court’s finding that the delay did not hinder their ability to present a defense. The defendants rely exclusively on Rule 48(b), F.R. Crim.P., which provides: Rule 48. Dismissal * * % * * * (b) By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint. By its terms Rule 48(b) is discretionary and, according to the Reporter’s Notes, reflects the inherent power of courts to dismiss for want of prosecution. The defendants assert that the district court abused its discretion in denying their motion and committed error in refusing to admit tendered evidence of personal hardship caused by the delay. The proffered testimony was that of the defendants’ wives that" }, { "docid": "6213525", "title": "", "text": "for impeachment purposes. On November 19, 1976, Pallan was convicted in the state proceeding. In early December the federal charges were presented to the grand jury and the indictment was returned on December 15, 1976. Pallan contends that the delay between the date of the latest criminal act, April 1972, and the date of the indictment, December 1976, violates his Fifth Amendment right to due process. In order to prevent this asserted constitutional violation, he argues, the case must be dismissed. We disagree. II In recent years, considerable attention has been directed to the fact that our criminal justice system is laboring under an ever-burgeoning case load. See, e. g., Godbold, Speedy Trial — Major Surgery for a National Ill, 24 Ala.L.Rev. 265 (1972). In response, Congress and the Judiciary have attempted to fashion constitutional and statutory means of preventing criminal defendants from being subjected to oppressive delays between arrest and trial. See, e. g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (judicial application of the Speedy Trial Provision of the Sixth Amendment); 18 U.S.C. §§ 3161-74 (Speedy Trial Act of 1974); and Fed.R.Crim.P. 48(b) (dismissal for unnecessary delay). It is clear, however, that these rules apply only to situations involving post-arrest delay. See United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) and United States v. Marion, 404 U.S. 307, 320-21, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (Speedy Trial Provision of Sixth Amendment applies only to post-arrest delays) and United States v. Marion, supra, 404 U.S. at 319, 92 S.Ct. 455 (Fed.R.Crim.P. 48(b) applies only to post-arrest delays). This distinction between pre- and post-arrest delay is a recognition of the fact that the post-arrest delay is inherently more capable of abuse and oppressive prejudice to the criminal defendant. For example, the Supreme Court has noted that the period following arrest and accusation has a greater tendency to “interfere with the defendant’s liberty, . . disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family" } ]

[ { "docid": "5700172", "title": "", "text": "so severe that no reasonable person should be expected to endure it.” Id., 230 Kan. at 292-93, 637 P.2d at 1180. In Kansas, these threshold requirements are substantial and can be surmounted only in rare cases of significantly egregious circumstances. The court finds that plaintiff has failed to meet the first threshold requirement. Plaintiff has not established that defendants’ conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. In Roberts, the court admonished that “liability may be found only in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society____ [Liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead that citizen to spontaneously exclaim, ‘Outrageous!’ ” 230 Kan. at 293, 637 P.2d at 1179 (citing Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975)); see Taiwo v. Vu, 249 Kan. 585, 592-93, 822 P.2d 1024, 1029 (1991). The Kansas Supreme Court further cautions that “liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities.” Roberts, 230 Kan. at 293, 637 P.2d at 1179. Liability for the tort of outrage rarely arises in the discrimination and harassment context. See Bolden v. PRC Inc., 43 F.3d 545, 554 (10th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995); Moten v. American Linen Supply Co., 155 F.R.D. 202, 205 (D.Kan.1994) (“Employment discrimination by itself, without aggravating factors like ethnic slurs and physical threats does not ‘amount to outrage.’ ”). Plaintiff’s outrage claim is based on his allegations that Banks engaged in a pattern of conduct targeting older teachers for retirement by hostility and harassment, that Banks accepted the allegations of the complaining students without meaningful investigation, and Banks had the propensity to side with complaining students regardless of the evidence when older teachers were involved. Plaintiff has not offered sufficient factual support for" } ]

[ { "docid": "3277989", "title": "", "text": "(2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it. Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981) (citations omitted) (emphasis added). Although “[n]o bodily harm to the plaintiff is required to support such an action,” “liability may only be found in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Id. “[Ljiability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities.” Id. at 293, 637 P.2d 1175. “Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind.” Id. In applying these standards, “[t]he overwhelming majority of Kansas cases have held in favor of defendants on the outrage issue, finding that the alleged conduct was insufficiently ‘outrageous’ to support the cause of action.” Lindemuth v. Goodyear Tire and Rubber Co., [19 Kan.App.2d 95, 100-01, 864 P.2d 744 (1993) ] (string citing past Kansas cases with explanatory parenthetieals). Moreover, “Kansas courts have been [particularly] reluctant to extend the outrage cause of action, to [discrimination claims, including] claims of sexual harassment, arising in the employment setting.” Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990) (string citing a number of cases). In a footnote, the court reviewed two Kansas cases in which intentional infliction of emotional distress claims had been upheld in the employment context. Id. at 677 n. 5. First, in Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990), a sexual harassment case, plaintiff along with other former employees testified that the defendant employer had continually harassed and terrorized plaintiff over a two-year period, including “screaming and cursing,” “unwanted touchings and sexual comments,” and “fits of rage which included throwing things and tearing up files,” because plaintiff would not sleep" }, { "docid": "11056427", "title": "", "text": "an employer is not liable for the intentional torts of an employee unless they are committed while the employee is acting within the scope of his employment or in furtherance of his employer’s business, and not with a purpose personal to the employee. Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, syl. 3, 520 P.2d 1296 (1974). The courts have not allowed a ease to proceed on a theory of vicarious liability in which the plaintiff was subjected to the harassment of co-workers. See e.g., Bolden v. PRC Inc., 43 F.3d 545, 554 (10th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995); Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499, 1507 (D.Kan.1993), aff'd, 51 F.3d 285 (10th Cir. 1995) (table) (employer is not vicariously liable for extreme and outrageous treatment of one employee by another employee); Braun v. Dillon Companies, Inc., 1995 WL 261142, at *14 (D.Kan. Apr. 19, 1995) Meininger v. Swift-Eckrich, Inc., 1995 WL 42700, at *5 (D.Kan. Jan. 6, 1995). Plaintiff argues that the above cases are distinguishable because Spillman was not her co-worker, but instead had supervisory authority over her. Essentially, plaintiff argues that the County should be liable because its employee, Spillman, used his position of authority to further his extreme and outrageous behavior. In Wilkerson v. P.I.A Topeka, Inc., 900 F.Supp. 1418, 1424-25 (D.Kan.1995), the court discussed the possible applicability of Restatement (Second) of Agency § 219(2)(d) in the context of an employer’s liability for a supervisor’s extreme and outrageous conduct. Section 219(2)(d) provides that an employer may be liable for the torts of an employee if the employee used his apparent authority or agency relationship to commit the tort. As discussed above, § 219(2)(d) most often is utilized to determine liability in the context of hostile work environment sexual harassment. It is unclear whether Kansas courts would extend the liability imposed under § 219(2)(d) to the context of the common law tort of outrage. The court in Wilkerson did not resolve the applicability of this . theory of recovery because it found that the conduct did not" }, { "docid": "7602490", "title": "", "text": "Tomkins Industries, Inc., 817 F.Supp. 1499, 1505-09 (D.Kan. 1993) (O’Connor, J.), a ease quite similar to the present one, the plaintiffs, who were husband and wife, alleged intentional infliction of severe emotional distress by a number of their co-workers who had allegedly engaged in sexual harassment, condonation of sexual harassment, and retaliation for opposition to sexual harassment. The only allegation involving direct acts of sexual harassment was that one supervisory co-worker “while putting eyedrops in the plaintiffs [wife’s] eye, told her that he did not want it to turn into a wet T-shirt contest.” Id. at 1507. The court held that “even if this comment [was] sexual harassment, it [was] a far cry from being extreme and outrageous.” Id. With respect to plaintiffs other allegations, the court found that it was “unable to conclude that the conduct of the defendants was sufficiently outrageous to permit recovery in tort beyond the standard action for employment discrimination.” Id. at 1508. The court accordingly directed summary judgment on the various intentional infliction of emotional distress claims. In the present case, the court finds that the alleged conduct of defendants Nease, Snelling, Rosendale, Minge, and Berry, like the alleged conduct in Anspach, is simply not sufficiently “outrageous” to support an intentional infliction of emotional distress or outrage claim against the individual defendants. Even accepting the allegations as true, none of the acts alleged to have been committed by any of these five defendants are “so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Roberts, 230 Kan. at 293, 637 P.2d 1175. The conduct which plaintiff has alleged occurred — namely, failing to responsively investigate sexual harassment charges, deceiving plaintiff into thinking she would be promoted, embarrassing her by treating her differently from her co-workers, and, in the case of defendant Nease, threatening to get her fired — while inappropriate, is “a far cry from being extreme and outrageous.” Anspach, 817 F.Supp. at 1507. Plaintiff argues, on the basis of Laughinghouse v. Risser, 754" }, { "docid": "2050059", "title": "", "text": "range of jobs in various classes). The court finds that plaintiff did not have a disability, within the meaning of that term in the ADA, when employed at Metro-Plex. See McKiver v. General Elec. Co., 11 F.Supp.2d 755 (M.D.N.C.1997); Dohrer v. Metz Baking Co., 1999 WL 60140 (N.D.Ill.1999)(both finding cervical and/or lumbar strains not disabilities). No recovery under the ADA is thus possible. Outrage Defendants seek summary judgment on plaintiffs intentional infliction of emotional distress claim. To establish a claim of intentional infliction of emotional distress, commonly referred to as the tort of outrage, a plaintiff must demonstrate four elements: (1) the conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant’s conduct and plaintiffs mental distress; and (4) plaintiffs mental distress must be extreme and severe. Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245, 257, 978 P.2d 922 (1999). For plaintiffs claim to survive summary judgment, the court must, as a matter of law, first determine that reasonable fact finders might differ as to: (1) whether defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and (2) whether plaintiffs emotional distress was so extreme and severe that the law must intervene because no reasonable person should be expected to endure it. Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175, 1179 (1981). Conduct is not extreme and outrageous unless it is regarded as being “beyond the bounds of decency and utterly intolerable in a civilized society.” Id. The threshold requirements for outrage causes of action are “necessarily high to separate meritorious claims from those based on trivialities or hyperbole.” Rupp v. Purolator Courier Corp., 790 F.Supp. 1069, 1073 (D.Kan.1992) (citing Fletcher v. Wesley Medical Center, 585 F.Supp. 1260, 1261-62 (D.Kan.1984)). Intentional infliction of emotional distress “is not a favored cause of action under Kansas law.” Beam v. Concord Hospitality, Inc., 873 F.Supp. 491, 501 (D.Kan.1994) (quoting E.E.O.C. v. General Motors Corp., 713 F.Supp. 1394, 1396-97 (D.Kan.1989)). “The Kansas courts have been" }, { "docid": "15582113", "title": "", "text": "losing the restrictions or losing her job, and told plaintiff to clean herself up and get back to work. In view of this direct evidence of a discriminatory animus, defendant’s argument that plaintiff has not shown she was treated less favorably than individuals with non-pregnancy related restrictions is unpersuasive. Accordingly, defendant’s motion for summary judgment will be denied with respect to the claim of pregnancy discrimination. C. Intentional Infliction of Emotional Distress. Defendant argues the evidence will not support plaintiffs claim for intentional infliction of emotional distress under Kansas law. In response, plaintiff contends her claim is viable due to the fact that she suffered physical symptoms and because of the defendant’s “extreme and outrageous conduct of long ignoring, condoning and acquiescing to the egregious sexual harassment. ...” PI. Mem. at 42. Plaintiff is basically recasting her sexual harassment allegations in the mold of a state tort claim, something the Kansas courts have generally not permitted. See Beam v. Concord Hospitality, Inc., 873 F.Supp. 491, 501 (D.Kan.1994) (“The Kansas courts have been reluctant to extend the outrage cause of action to discrimination claims, including claims of sexual harassment, arising in the employment setting.”). Kansas law might allow such a claim in the employment context if, for instance, the case involved repeated physical threats and sexually abusive language. See Land v. Midwest Office Technology, Inc., 114 F.Supp.2d 1121, 1144 (D.Kan.2000). Plaintiff has cited no such evidence here. The mere fact that her supervisor threatened to “get her” does not rise to the level of outrageous behavior that would support a claim for outrage or intentional infliction of emotional distress. Cf. Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1264 (10th Cir.1998) (citing Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205 (1986)) (Conduct is not extreme and outrageous unless it is regarded as being “beyond the bounds of decency and utterly intolerable in a civilized society.”). D. Negligent Hiring, Supervision and Retention. Defendant argues that plaintiffs claim for negligent hiring, retention and supervision is also precluded under the facts of this case. The court agrees. “It is" }, { "docid": "11056426", "title": "", "text": "(4) plaintiffs mental distress must be extreme and severe. Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024 (1991) (citing Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981)). To constitute extreme and outrageous conduct, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Saylor, 637 P.2d at 1179. The tort of outrage is not favored under Kansas law. The courts have been reluctant to extend the tort of outrage cause of action to the employment setting. Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990). Plaintiff bases her claim of outrage against defendant County on a theory of vicarious liability and on the County’s failure to investigate and remedy the hostile work environment. Defendant County argues that under Kansas law, they are not vicariously liable for Spillman’s acts of harassment and that the County’s failure to investigate cannot rise to the level of extreme and outrageous. Generally, an employer is not liable for the intentional torts of an employee unless they are committed while the employee is acting within the scope of his employment or in furtherance of his employer’s business, and not with a purpose personal to the employee. Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, syl. 3, 520 P.2d 1296 (1974). The courts have not allowed a ease to proceed on a theory of vicarious liability in which the plaintiff was subjected to the harassment of co-workers. See e.g., Bolden v. PRC Inc., 43 F.3d 545, 554 (10th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995); Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499, 1507 (D.Kan.1993), aff'd, 51 F.3d 285 (10th Cir. 1995) (table) (employer is not vicariously liable for extreme and outrageous treatment of one employee by another employee); Braun v. Dillon Companies, Inc., 1995 WL 261142, at *14 (D.Kan. Apr. 19, 1995) Meininger v. Swift-Eckrich, Inc., 1995 WL 42700, at *5 (D.Kan. Jan. 6, 1995). Plaintiff argues that the above cases" }, { "docid": "16684943", "title": "", "text": "mental distress must be extreme and severe. Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205, 1211 (1986) (citing Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983)). For plaintiff's claim to survive summary judgment, the court must, as a matter of law, first determine that reasonable fact finders might differ as to: (1) whether defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and (2) whether plaintiff's emotional distress was so extreme and severe that the law must intervene because no reasonable person should be expected to endure it. Id. (citing Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175, 1179 (1981)). Conduct is not extreme and outrageous unless it is regarded as being \"beyond the bounds of decency and utterly intolerable in a civilized society .\" Id. The threshold requirements for outrage causes of action are \"necessarily high to separate meritorious claims from those based on trivialities or hyperbole.\" Rupp v. Purolator Courier corp., 790 F.Supp. 1069, 1073 (D.Kan.1992) (citing Fletcher v. Wesley Medical Center, 585 F.Supp. 1260, 1261-62 (D.Kan.1984)). Intentional infliction of emotional distress \"is not a favored cause of action under Kansas law.\" Beam v. Concord Hospitality, Inc., 873 F.Supp. 491, 501 (D.Kan.1994) (quoting E.E.O.C. v. General Motors Corp., 713 F.Supp. 1394, 1396-97 (D.Kan.1989)). \"The Kansas courts have been reluctant to extend the outrage cause of action to discrimination claims, including claims of sexual harassment, arising in the employment setting.\" Id. (quoting Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990)). The existence of a hostile work environment sufficient to support a Title VII claim does not necessarily require a finding of outrageous conduct. See, e.g., Varley v. Superior Chevrolet Automotive Co., No. 96-2119, 1997 WL 161942, at *16 (D.Kan. Mar.21, 1997); Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499, 1507 (D.Kan.1993), aff'd, 51 F.3d 285 (10th Cir.1995). The few cases in which courts have permitted outrage claims to survive summary judgment motions have involved repeated physical threats and racially or sexually abusive language. See, e.g., Laughinghouse, 754 F.Supp. at 836; Gomez v. Hug," }, { "docid": "7602488", "title": "", "text": "the cause of action: (1) The conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant’s conduct and plaintiffs mental distress; and (4) plaintiffs mental distress must be extreme and severe. Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it. Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981) (citations omitted) (emphasis added). Although “[n]o bodily harm to the plaintiff is required to support such an action,” “liability may only be found in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Id. “[Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities.” Id. at 293, 637 P.2d 1175. “Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind.” Id. In applying these standards, “[t]he overwhelming majority of Kansas cases have held in favor of defendants on the outrage issue, finding that the alleged conduct was insufficiently ‘outrageous’ to support the cause of action.” Lindemuth v. Goodyear Tire and Rubber Co., 864 P.2d 744 (Kan.App.1993) (string citing past Kansas cases with explanatory parentheticals). Moreover, “Kansas courts have been [particularly] reluctant to extend the outrage cause of action to ... claims of sexual harassment, arising in the employment setting.” Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990) (string citing a number of cases). For example, in Anspach v." }, { "docid": "7602489", "title": "", "text": "in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Id. “[Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities.” Id. at 293, 637 P.2d 1175. “Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind.” Id. In applying these standards, “[t]he overwhelming majority of Kansas cases have held in favor of defendants on the outrage issue, finding that the alleged conduct was insufficiently ‘outrageous’ to support the cause of action.” Lindemuth v. Goodyear Tire and Rubber Co., 864 P.2d 744 (Kan.App.1993) (string citing past Kansas cases with explanatory parentheticals). Moreover, “Kansas courts have been [particularly] reluctant to extend the outrage cause of action to ... claims of sexual harassment, arising in the employment setting.” Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990) (string citing a number of cases). For example, in Anspach v. Tomkins Industries, Inc., 817 F.Supp. 1499, 1505-09 (D.Kan. 1993) (O’Connor, J.), a ease quite similar to the present one, the plaintiffs, who were husband and wife, alleged intentional infliction of severe emotional distress by a number of their co-workers who had allegedly engaged in sexual harassment, condonation of sexual harassment, and retaliation for opposition to sexual harassment. The only allegation involving direct acts of sexual harassment was that one supervisory co-worker “while putting eyedrops in the plaintiffs [wife’s] eye, told her that he did not want it to turn into a wet T-shirt contest.” Id. at 1507. The court held that “even if this comment [was] sexual harassment, it [was] a far cry from being extreme and outrageous.” Id. With respect to plaintiffs other allegations, the court found that it was “unable to conclude that the conduct of the defendants was sufficiently outrageous to permit recovery in tort beyond the standard action for employment discrimination.” Id. at 1508. The court accordingly directed summary judgment on the various intentional infliction of emotional distress claims. In the" }, { "docid": "22445105", "title": "", "text": "Mr. Carver and PRC were liable for the coworkers’ behavior, the behavior of the eoworkers would have to be extreme for Mr. Bolden to prevail on this claim. Kansas has adopted the Restatement, Second, Torts § 46 as its common law tort of outrage. See Saylor, 637 P.2d at 1179. To succeed on a claim of outrage, as a threshold matter, Mr. Bolden must show the conduct of Mr. Bolden’s coworkers may reasonably be regarded as so extreme and outrageous as to permit recovery and show he suffered emotional distress so severe the law must intervene because no reasonable person would be expected to endure it. Moore, 729 P.2d at 1211. “[M]ere insults, indignities, threats, annoyances, petty expressions, or other trivialities” do not rise to the level of outrageous conduct. Saylor, 637 P.2d at 1179. “Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.” Id. The Kansas courts have been reluctant to extend the outrage cause of action to discrimination and harassment claims; only in Gomez v. Hug, 7 Kan.App.2d 603, 645 P.2d 916 (1982), did the Kansas courts allow such a claim. In Gomez, the plaintiff was subjected to vulgar, racist expressions and threats of violence resulting in possible serious medical problems. 645 P.2d at 918. The United States District Court in Kansas, in the case of Laughinghouse v. Risser, 754 F.Supp. 836 (D.Kan.1990), also found an employee adequately alleged the tort of outrage so as to survive summary judgment. In Laughing-house, the plaintiff was the victim of sexual harassment from her supervisor described as “a concerted effort to terrorize her and to intentionally break her spirit.” 754 F.Supp. at 843. The court in Laughinghouse found the nature of the abuse coupled with its constancy sufficiently demonstrated an outrage claim. Id. at 844. The abuse of Mr. Bolden in the workshop was not constant and did not rise to the level of threats and abuse in Gomez and Laughinghouse. Mr. Bolden was" }, { "docid": "18666183", "title": "", "text": "and (2) whether the emotional distress suffered by the plaintiff is of such extreme degree the law must intervene because no reasonable person should be expected to endure it.” Fusaro v. First Family Mortgage Corporation, Inc., 257 Kan. 794, 897 P.2d 123, 131 (1995). “[F]or conduct to be deemed sufficient to support the tort of outrage, it must be so outrageous in character and so extreme in degree as to go beyond the bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.” Id. “The classic test is that liability may be found to exist when the recitation of the facts to an average citizen would arouse resentment against the actor and lead that citizen to spontaneously exclaim, ‘Outrageous!’ ” Id. The Tenth Circuit has noted that “Kansas courts are reluctant to extend the outrage cause of action to discrimination and harassment claims.” Bolden v. PRC, Inc., 43 F.3d 545, 554 (10th Cir.1994) cert. denied, — U.S. -, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995). Many cases may be cited to support that conclusion. E.g., Moten v. American Linen Supply Co., 155 F.R.D. 202 (D.Kan.1994); Byle v. Anacomp, Inc., 854 F.Supp. 738 (D.Kan.1994). The allegations in plaintiffs complaint are insufficient to state a claim of outrage against defendant Vernon. Plaintiff alleges that defendant Vernon: failed to investigate her grievances properly; retaliated against plaintiff for filing grievances; and was indifferent to or promoted a hostile working environment and disparate conditions of employment. However, there are no specific allegations of misconduct so extreme and outrageous as to warrant recovery for outrage. See West v. Boeing Co., 843 F.Supp. 670, 678 (D.Kan.1994); Anspach v. Tomkins Industries, Inc., 817 F.Supp. 1499, 1505-09 (D.Kan.1993), aff'd, 51 F.3d 285 (10th Cir.1995) (table). Plaintiff has asked for comparison to cases like Laughinghouse v. Risser, 754 F.Supp. 836 (D.Kan.1990) where this court permitted an outrage claim to proceed to a jury. Some working environments are more “hostile” than others. While the court is not passing judgment at this stage on plaintiffs harassment claim, the allegations she has made are far less extreme" }, { "docid": "15114338", "title": "", "text": "only surmounted in the rare cases of significantly egregious circumstances. To prevail on her outrage claim, plaintiff must present evidence of the following elements: (1) the conduct of the defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the defendant’s conduct and the plaintiffs mental distress; and (4) plaintiffs mental distress must be extreme and severe. Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175, 1179 (1981). “Liability may only be found in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Taiwo v. Vu, 249 Kan. 585, 592-93, 822 P.2d 1024, 1029 (1991). Courts have been reluctant to permit an outrage claim relating to sexual harassment arising in the employment setting. See Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990) (citations omitted). Plaintiff invites us to lower the threshold required, with respect to her claim against Pepsi and Terrell, because it was outside the employment setting and she does not have a Title VII claim against them. We decline the invitation. We believe that, regardless of the context, in Kansas, recovery for the tort of outrage requires outrageous conduct. Plaintiffs outrage claim fails as a matter of law because Terrell’s conduct, while offensive, was not so extreme and beyond the bounds of all decency that the law must intervene. Negligent Supervision and Retention. Defendant Pepsi seeks summary judgment on plaintiffs claims for negligent supervision and retention of Terrell. Kansas law clearly recognizes a claim by non-employee third parties for negligent supervision and retention. See Beam v. Concord Hospitality, Inc., 873 F.Supp. 491, 503 (D.Kan.1994); Kansas State Bank & Trust Co. v. Specialized Transp. Serv., Inc., 249 Kan. 348, 362, 819 P.2d 587, 598 (1991). To go forward with her negligent supervision and retention claim, plaintiff must present evidence from which a reasonable jury could find that Pepsi was negligent in retaining Terrell after it" }, { "docid": "16684944", "title": "", "text": "Fletcher v. Wesley Medical Center, 585 F.Supp. 1260, 1261-62 (D.Kan.1984)). Intentional infliction of emotional distress \"is not a favored cause of action under Kansas law.\" Beam v. Concord Hospitality, Inc., 873 F.Supp. 491, 501 (D.Kan.1994) (quoting E.E.O.C. v. General Motors Corp., 713 F.Supp. 1394, 1396-97 (D.Kan.1989)). \"The Kansas courts have been reluctant to extend the outrage cause of action to discrimination claims, including claims of sexual harassment, arising in the employment setting.\" Id. (quoting Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990)). The existence of a hostile work environment sufficient to support a Title VII claim does not necessarily require a finding of outrageous conduct. See, e.g., Varley v. Superior Chevrolet Automotive Co., No. 96-2119, 1997 WL 161942, at *16 (D.Kan. Mar.21, 1997); Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499, 1507 (D.Kan.1993), aff'd, 51 F.3d 285 (10th Cir.1995). The few cases in which courts have permitted outrage claims to survive summary judgment motions have involved repeated physical threats and racially or sexually abusive language. See, e.g., Laughinghouse, 754 F.Supp. at 836; Gomez v. Hug, 7 Kan.App.2d 603, 645 P.2d 916 (1982). In Laughinghouse, the plaintiff was the victim of sexual harassment and abuse from her supervisor described as \"a concerted effort to terrorize her and to intentionally break her spirit.\" 754 F.Supp. at 843. Such harassment and abuse took the forms of screaming, cursing, sexual comments and unwanted touching, fits of rage, which included tearing up files and throwing things, threats of termination, and other tactics. Id. Evidence in that case indicated that the defendant mounted a concerted effort to terrorize the plaintiff and to treat her \"like an animal.\" Id. Similarly, the defendant in Gomez subjected the plaintiff to vulgar, racist expressions, and threats of violence resulting in potentially serious medical problems. 645 P.2d at 918. 5 F.Supp.2d 936, 953-54. Although cognizant of the overwhelmingly high standard the Kansas courts have set for TIED plaintiffs, the court finds that reasonable fact finders might differ as to whether Mr. Maier's conduct was so extreme and outrageous as to permit recovery. In particular, threatening to rape a women is not" }, { "docid": "621714", "title": "", "text": "553 (citing Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981)). To constitute sufficiently extreme and outrageous conduct, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Bolden, 43 F.3d at 554 (citing Roberts, 230 Kan. at 293, 637 P.2d 1175). Plaintiffs complaint fails to contain any factual allegations that would support an outrage claim. Rather, plaintiff has simply alleged that defendant terminated his employment when plaintiff was consoling relatives, grieving the loss of his mother, and making funeral arrangements. Defendant’s decision to terminate plaintiffs employment is simply an “ordinary business decision! ] ... made every day by employers across the nation.” Gudenkauf v. Stauffer Communications, Inc., 922 F.Supp. 461, 464 (D.Kan.1996) (quoting Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499, 1508 (D.Kan.1993), aff'd, 51 F.3d 285 (10th Cir.1995) (table)). Even if defendant’s decision to terminate plaintiff was driven by an unlawful motive, such as plaintiffs attempt to exercise his rights under the FMLA, defendant’s conduct is not extreme or outrageous. See id. (citing Anspach, 817 F.Supp. at 1508; Fletcher v. Wesley Medical Center, 585 F.Supp. 1260, 1262 (D.Kan.1984)); Ramirez v. IBP, Inc., No. 94-4101-SAC, 1994 WL 732612, at *2 (D.Kan. Nov.18, 1994) (citing same). See also Panis v. Mission Hills Bank, N.A., No. 92-2391-EEO, 1993 WL 390399 at *2-3 (D.Kan. Sept. 30, 1993) (denying plaintiffs motion to amend complaint to include outrage claim based solely on alleged unlawful discharge). Accordingly, defendant’s motion to dismiss plaintiffs outrage claim is granted to the extent the claim is based on the allegations set forth in the complaint. Bearing in mind the standards governing a Rule 12(b)(6) motion, however, the court will afford plaintiff the opportunity to allege the requisite facts to support an outrage claim if such facts exist. IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion to dismiss plaintiffs complaint (Doc. #5) is granted in part and denied in part. Specifically, defendant’s motion to dismiss is granted with respect to plaintiffs claims" }, { "docid": "621713", "title": "", "text": "law tort of outrage. Butler v. City of Prairie Village, 974 F.Supp. 1386, 1406 (D.Kan.1997). Moreover, “Kansas courts have been reluctant to extend the outrage cause of action to discrimination and harassment claims.” Bolden v. PRC Inc., 43 F.3d 545, 554 (10th Cir.1994). To establish a prima facie case of outrage, plaintiff must show that (1) defendant’s conduct was intentional or in reckless disregard of plaintiff; (2) defendant’s conduct was extreme and outrageous; (3) there is a causal connection between defendant’s conduct and plaintiffs mental distress; and (4) plaintiffs mental distress is extreme and severe. Id. at 553 (citing Moore v. State Bank of Burden, 240 Kan. 382, 388, 729 P.2d 1205 (1986)); Butler, 974 F.Supp. at 1406. The threshold inquiries for the tort of outrage are whether “(1) the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery and (2) the emotional distress suffered by the plaintiff is so extreme the law must intervene because no reasonable person would be expected to endure it.” Bolden, 43 F.3d at 553 (citing Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981)). To constitute sufficiently extreme and outrageous conduct, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Bolden, 43 F.3d at 554 (citing Roberts, 230 Kan. at 293, 637 P.2d 1175). Plaintiffs complaint fails to contain any factual allegations that would support an outrage claim. Rather, plaintiff has simply alleged that defendant terminated his employment when plaintiff was consoling relatives, grieving the loss of his mother, and making funeral arrangements. Defendant’s decision to terminate plaintiffs employment is simply an “ordinary business decision! ] ... made every day by employers across the nation.” Gudenkauf v. Stauffer Communications, Inc., 922 F.Supp. 461, 464 (D.Kan.1996) (quoting Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499, 1508 (D.Kan.1993), aff'd, 51 F.3d 285 (10th Cir.1995) (table)). Even if defendant’s decision to terminate plaintiff was driven by an unlawful motive, such as plaintiffs attempt to" }, { "docid": "18666184", "title": "", "text": "cited to support that conclusion. E.g., Moten v. American Linen Supply Co., 155 F.R.D. 202 (D.Kan.1994); Byle v. Anacomp, Inc., 854 F.Supp. 738 (D.Kan.1994). The allegations in plaintiffs complaint are insufficient to state a claim of outrage against defendant Vernon. Plaintiff alleges that defendant Vernon: failed to investigate her grievances properly; retaliated against plaintiff for filing grievances; and was indifferent to or promoted a hostile working environment and disparate conditions of employment. However, there are no specific allegations of misconduct so extreme and outrageous as to warrant recovery for outrage. See West v. Boeing Co., 843 F.Supp. 670, 678 (D.Kan.1994); Anspach v. Tomkins Industries, Inc., 817 F.Supp. 1499, 1505-09 (D.Kan.1993), aff'd, 51 F.3d 285 (10th Cir.1995) (table). Plaintiff has asked for comparison to cases like Laughinghouse v. Risser, 754 F.Supp. 836 (D.Kan.1990) where this court permitted an outrage claim to proceed to a jury. Some working environments are more “hostile” than others. While the court is not passing judgment at this stage on plaintiffs harassment claim, the allegations she has made are far less extreme than the allegations and evidence in the Laughinghouse case. There is no specific allegation in plaintiffs complaint to suggest that the working environment plaintiff endured was so egregious that it would be considered intolerable in a civilized society. However, the court shall grant plaintiff ten days to amend the complaint to include any additional factual allegations which she believes would state a claim of outrage. Rule 56(f) As an alternative to granting defendant’s motion, plaintiff has asked for additional time under FED.R.CIV.P. 56(f) to conduct discovery. Aside from the claims which plaintiff has agreed to withdraw, the court is dismissing two claims in this opinion. The court is dismissing a separate claim under § 1983 alleging retaliation. The court is holding that retaliation must be considered part of a harassment claim under § 1983. The court is also dismissing plaintiffs outrage claim as inadequately pleaded. The proposed discovery suggested by plaintiff would not cause the court to alter either one of these holdings. Therefore, the court shall not defer either holding to permit plaintiff to" }, { "docid": "9838817", "title": "", "text": "employer’s adverse action and the employee’s protected activity. Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir.1994). Assuming Lowe’s activities qualified as protected opposition to statutorily prohibited discrimination, Lowe has nevertheless failed to provide any evidence demonstrating a causal connection between her termination and the protected activity. Accordingly, she has failed to establish a prima facie case of retaliation under Title VII. Finally, Lowe challenges the district court’s grant of summary judgment on her Kansas state law claim for intentional infliction of emotional distress or outrage. This court recently considered the requirements for the tort of outrage under Kansas law in Bolden v. PRC Inc., 43 F.3d 545 (10th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995). To succeed on a claim of outrage, as a threshold matter, the employee must show that: (1) the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) the emotional distress suffered by the plaintiff is so extreme the law must intervene because no reasonable person would be expected to endure it. Id. at 553 (citing Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175, 1179 (1981)). “ ‘Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.’ ” Id. at 554 (quoting Roberts, 637 P.2d at 1179). Because the court determines that defendants’ conduct, although distasteful, is not so extreme that it “goes beyond the bounds of decency and is utterly intolerable in a civilized society,” the district court’s grant of summary judgment on Lowe’s claim of outrage is affirmed. For the foregoing reasons, this court AFFIRMS the district court’s grant of summary judgment on Lowe’s Title VII and intentional infliction of emotional distress claims. The court REVERSES the grant of summary judgment on Lowe’s ADA claim and REMANDS for further proceedings." }, { "docid": "2050061", "title": "", "text": "reluctant to extend the outrage cause of action to discrimination claims, including claims of sexual harassment, arising in the employment setting.” Id. (quoting Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990)). The existence of a hostile work environment sufficient to support a Title VII claim does not necessarily require a finding of outrageous conduct. See, e.g., Varley v. Superior Chevrolet Automotive Co., 1997 WL 161942, *16 (D.Kan.1997); Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499, 1507 (D.Kan.1993), aff'd, 51 F.3d 285, 1995 WL 133385 (10th Cir.1995). The few cases in which courts have permitted outrage claims in the employment context have involved repeated physical threats and racially or sexually abusive language. See, e.g., Laughinghouse, 754 F.Supp. at 836 (overruling motion for judgment notwithstanding the verdict where defendant created a “long-standing pattern of abusive behavior” over a period of eighteen months consisting of sexual propositions, criticism of work performance, calling plaintiff “stupid,” attacking her personal life, touching her offensively, throwing things, and angrily intimidating her); Gomez v. Hug, 7 Kan.App.2d 603, 645 P.2d 916 (1982)(denying summary judgment where racial invective and threats of violence by employer to employee were made over several days); Oliphant v. Perkins, 1995 WL 7729 (D.Kan.1995) (permitting punitive damages against employer after jury verdict, where manager routinely lost his temper, directed his anger at plaintiff, called her profane and sex-based names, cursed and screamed very loudly plaintiff while in their small office, so as to be heard in other areas of the restaurant). The incidents upon which plaintiff bases her claim are those same incidents upon which she bases her sexual harassment claims, which are discussed above. Given the assertions made by plaintiff, it is a close call whether the defendants’ conduct is sufficient to constitute outrage. See Beam v. Concord Hospitality, Inc., 873 F.Supp. 491, 501 (D.Kan.1994) (D.Kan.1994) (rude, abrasive and unprofessional behavior of an employee, including making a culinary effigy of a penis, not outrageous); Byle v. Anacomp, Inc., 854 F.Supp. 738, 747-48 (D.Kan.1994) (no claim of outrage where plaintiff felt threatened by her supervisor, was called on occasion a “bitch” by her supervisor, and" }, { "docid": "16548894", "title": "", "text": "Medical Center, 233 Kan. 267, Syl. ¶ 3, 662 P.2d 1214 (1983)). Conduct is not extreme and outrageous unless regarded as exceeding the bounds of decency or as utterly intolerable in a civilized society. Wiehe v. Kukal, 225 Kan. 478, 482, 592 P.2d 860 (1979). Liability also depends on clearing two threshold determinations by the court that \"the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and ... [that] the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.\" Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981). The alleged actions here taken by the defendant are more akin to the kind of “ordinary business decisions ... made every day ... across the nation” as opposed to what a civilized society would call atrocious, indecent and utterly intolerable. Anspach v. Tomkins Industries, Inc., 817 F.Supp. 1499, 1508 (D.Kan.1993), aff’d, 51 F.3d 285 (10th Cir. 1995) (Table). Asking an employee to volunteer for a demotion is an example of the kind of business actions ordinarily expected from employers. As for the alleged harassment, the plaintiffs own conclusory opinion that the defendant’s conduct is extreme and outrageous is not enough to create a genuine issue of fact. The plaintiff must come forth with specific facts showing that the conduct occurred with such frequency and was of such a nature as to reach the threshold of extreme and outrageous. “ ‘[Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities.’ ” West v. Boeing Co., 843 F.Supp. 670, 677 (D.Kan.1994) (quoting Roberts, 230 Kan. at 293, 637 P.2d 1175), vacated in part on other grounds, 851 F.Supp. 395 (D.Kan.1994). Both as a member of the public and as an employee, the plaintiff is necessarily expect ed to be inured to some “ ‘amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind.’” Id. The employer’s actions do not become actionable" }, { "docid": "2050060", "title": "", "text": "of law, first determine that reasonable fact finders might differ as to: (1) whether defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and (2) whether plaintiffs emotional distress was so extreme and severe that the law must intervene because no reasonable person should be expected to endure it. Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175, 1179 (1981). Conduct is not extreme and outrageous unless it is regarded as being “beyond the bounds of decency and utterly intolerable in a civilized society.” Id. The threshold requirements for outrage causes of action are “necessarily high to separate meritorious claims from those based on trivialities or hyperbole.” Rupp v. Purolator Courier Corp., 790 F.Supp. 1069, 1073 (D.Kan.1992) (citing Fletcher v. Wesley Medical Center, 585 F.Supp. 1260, 1261-62 (D.Kan.1984)). Intentional infliction of emotional distress “is not a favored cause of action under Kansas law.” Beam v. Concord Hospitality, Inc., 873 F.Supp. 491, 501 (D.Kan.1994) (quoting E.E.O.C. v. General Motors Corp., 713 F.Supp. 1394, 1396-97 (D.Kan.1989)). “The Kansas courts have been reluctant to extend the outrage cause of action to discrimination claims, including claims of sexual harassment, arising in the employment setting.” Id. (quoting Laughinghouse v. Risser, 754 F.Supp. 836, 843 (D.Kan.1990)). The existence of a hostile work environment sufficient to support a Title VII claim does not necessarily require a finding of outrageous conduct. See, e.g., Varley v. Superior Chevrolet Automotive Co., 1997 WL 161942, *16 (D.Kan.1997); Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499, 1507 (D.Kan.1993), aff'd, 51 F.3d 285, 1995 WL 133385 (10th Cir.1995). The few cases in which courts have permitted outrage claims in the employment context have involved repeated physical threats and racially or sexually abusive language. See, e.g., Laughinghouse, 754 F.Supp. at 836 (overruling motion for judgment notwithstanding the verdict where defendant created a “long-standing pattern of abusive behavior” over a period of eighteen months consisting of sexual propositions, criticism of work performance, calling plaintiff “stupid,” attacking her personal life, touching her offensively, throwing things, and angrily intimidating her); Gomez v. Hug, 7 Kan.App.2d 603, 645 P.2d 916 (1982)(denying summary" } ]

[ { "docid": "422578", "title": "", "text": "(1949); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-22, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963))). . Id. at 246, 111 S.Ct. 1227. . Id. (internal quotation marks omitted)(quoting Foley Bros., 336 U.S. at 285, 69 S.Ct. 575). . 260 U.S. at 95-96, 43 S.Ct. 39. . Id. at 97, 43 S.Ct. 39. . Id. at 98-103, 43 S.Ct. 39. . Id. at 98, 43 S.Ct. 39. . Id. . United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994) (quoting United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991)(internal quotation marks and citations omitted)); see also Baker, 609 F.2d at 136; United States v. Wright-Barker, 784 F.2d 161, 166-67 (3d Cir.1986). See generally Christopher L. Blakesley & Dan Stigall, Wings for Talons: The Case for the Extraterritorial Jurisdiction Over Sexual Exploitation of Children through Cyberspace, 50 Wayne L.Rev. 109, 124 (2004)(asserting that, in certain situations, the United States will ignore the general rule against extraterritorial application, and assert jurisdiction \"over nationals who commit crimes abroad even though the appropriate statute did not explicitly declare that it applied extraterritorially”). . Baker, 609 F.2d at 137. . See Martinelli, 62 M.J. 52, 57-58 (C.A.A.F. 2005). . See 260 U.S. at 96, 43 S.Ct. 39. . See United States v. Bin Laden, 92 F.Supp.2d 189, 194 (S.D.N.Y.2000)(holding the Bowman exception to the presumption against extraterritoriality applies to various criminal statutes, such as statutes prohibiting the malicious destruction of property owned or possessed by the United States or the killing in the course of an attack on a federal facility involving a dangerous weapon, but also holding that the exception does not apply to the statute penalizing murder within the \"special maritime and territorial jurisdiction of the United States”). . Id.) see also Blakesley & Stigall, supra note 21, at 141-42 (\"The Constitution interposes no bar as such to the extraterritorial application of criminal law,” and thus, if Congress proscribes extraterritorial conduct, “United States law is satisfied.\"). . Bin Laden, 92 F.Supp.2d at 194. . See Blakesley & Stigall, supra note 21, at 152 (\"Cyberspace is a wonderful" } ]

[ { "docid": "3417705", "title": "", "text": "1326, 1342 (2d Cir.1992)(noting that section 7 would permit U.S. criminal jurisdiction over the commission of crimes at Guantanamo Bay). Only one court has reached a result in direct conflict with Corey. In United States v. Gatlin, a panel of the Second Circuit Court of Appeals considered whether a U.S. citizen could be tried under Title 18 U.S.C. § 2243(a) for sexually abusing a 13-year-old girl in a housing complex located onboard a U.S. Army base in Germany. 216 F.3d 207, 208 (2d Cir.2000). After noting that the statute in question did not apply to conduct committed outside the “territorial jurisdiction of the United States,” the Gatlin Court concluded that the trial court did not have jurisdiction to try the appellant for the offenses charged. Id. at 220. The Gatlin Court relied heavily on the presumption against extraterritorial application articulated in Foley. Id. at 211. The Gatlin Court applied the identified presumption to a jurisdictional statute, Title 18 U.S.C. § 7, as opposed to a substantive Federal law. The canon of statutory construction articulated in Foley was clearly meant to apply only to substantive statutory provisions. See Foley Bros., Inc., 336 U.S. at 285, 69 S.Ct. 575 (considering whether Congress intended to apply Federal law restricting the length of a work day to work performed in foreign countries); see also United States v. Bin Laden, 92 F.Supp.2d 189, 206 (S.D.N.Y.2000)(noting that the presumption against extraterritorial application only applies to statutory provisions that define offenses). In addition, the Gatlin Court applied a presumption to defeat the plain meaning of the language contained in subsection 7(3) providing for a broad concept of “territory” under the Federal criminal code. As noted in Foley, the presumption against extraterritorial application applies only in the absence of a clear intent to the contrary. 336 U.S. at 285, 69 S.Ct. 575; see also United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)(“In determining the scope of a statute, we look first to its language.”). Even if Appellant’s conviction involved an “extraterritorial application” of Federal law, such application was not in contravention" }, { "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": "17933053", "title": "", "text": "is furnished by precedents concerning subject matter jurisdiction for international securities transactions and antitrust matters.”); Philip Morris, 449 F.Supp.2d at 873 (citing Al-Turki). . The Second Circuit did note, \"we have no occasion to address — and express no opinion on — the extraterritorial application of RICO when enforced by the government pursuant to Sections 1962, 1963 or 1964(a) and (b).” Norex, 631 F.3d at 33. The United States argues that in cases of civil and criminal enforcement by the Government there is a presumption of extraterritorial application under U.S. v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). See U.S. Mot. 19-27. As Defendants point out, however, Bowman only applied the relevant criminal statute to extraterritorial conduct because the statute was based on \"the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents.” Bowman, 260 U.S. at 98, 43 S.Ct. 39 (emphasis added). Bowman distinguished this category from crimes against individuals, which “must, of course, be committed within the territorial jurisdiction of the government.” Id.; see also U.S. v. Gatlin, 216 F.3d 207, 211 n. 5 (2d Cir.2000) (explaining that the “Bowman rule” does not apply to crimes against private individuals). As the Defendants' criminal enterprise does not implicate “the right of the government to defend itself,” Bowman poses no obstacle to the proper application of Morrison here. Bowman, 260 U.S. at 98, 43 S.Ct. 39. . The Government has raised a number of arguments as to why Morrison does not control. Parties can be assured that the Court considered them in detail, but firmly believes that Morrison dictates the outcome in this case. . The Court is referring to the requirement that BATCo contribute to payment of the Government’s costs. . See supra note 8." }, { "docid": "422584", "title": "", "text": "leased to, or otherwise used by or under the control of the United States Government.” Section 2252A(a)(5)(B) proscribes knowingly possessing child pornography that has been \"mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.\" . See 18 U.S.C. § 2252A(a)(5)(A). . Martinelli, 62 M.J. at 61. . 11 C.M.A. 698, 702, 29 C.M.R. 514, 518 (1960). . Pub.L. No. 84-728, 70 Stat. 567 (repealed 1970). . See Martinelli, 62 M.J. at 59-61. . Because the issue in this case is whether Congress intended the CPPA to apply extraterritorially to reach Appellant's offenses, and because I believe that it does, there is no need to decide whether 18 U.S.C. § 7(3) (2000), which defines \"special maritime and territorial jurisdiction of the United States,” has extraterritorial application in this case. Compare United States v. Gatlin, 216 F.3d 207, 220 (2d Cir.2000)(holding that 18 U.S.C. § 7(3) does not apply extraterritorially to reach appellant's offense of sexual abuse of a minor on a United States military installation in the Federal Republic of Germany), with Corey, 232 F.3d at 1183 (holding that 18 U.S.C. § 7(3) applies extraterritorially to appellant’s offense of sexual abuse of a minor on an Air Force base in Japan and in an off-base private apartment building in the Philippines). See also Blakesley & Stigall, supra note 21, at 147 (asserting that the holding of Gatlin, 216 F.3d at 220, is based on the same flawed reasoning as the holdings in Corey, 232 F.3d at 1183, and United States v. Cream, 58 M.J. 750, 755 (N.M.Ct. Crim.App.2003), because \"[tjhere is no need to look to 18 U.S.C. § 7(3) or traditional notions of territoriality to find jurisdiction over the acts of pedophiles abroad. Given the fact that cyberspace has no borders and distance in that realm is irrelevant, there is no reason why U.S. courts should not eschew reliance on traditional notions of territoriality and directly rule that such statutes have extraterritorial application.”). . 4 M.J. 1, 5 (C.M.A.1977). I believe our Court in Gladue misread the Bowman exception to the presumption against" }, { "docid": "21559138", "title": "", "text": "extraterritoriality. They conclude that maritime legislation is not subject to the presumption. In support of this argument, they rely primarily on United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922), in which the Supreme Court held that a criminal statute prohibiting conspiracy to defraud a corporation in which the United States is a stockholder applied extraterritorially, despite Congress’ failure to indicate that the statute should be so applied. In Bowman, the Court explained that, if a statute is to be applied extraterritorially, “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. at 41. The Bowman Court then noted, however, that “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.” Id. Despite the Director’s and Kollias’ claim that the LHWCA is “not logically dependent on [its] locality for the Government’s jurisdiction,” we find Bowman unpersuasive with respect to the LHWCA. The Supreme Court’s recent discussions of the presumption against extraterritoriality, none of which mentions Bowman, seem to require that all statutes, without exception, be construed to apply within the United States only, unless a contrary intent appears. See, e.g., Smith, — U.S. at-& n. 5, 113 S.Ct. at 1183 & n. 5; Aramco, 499 U.S. at 248, 111 S.Ct. at 1230. At best, therefore, the holding in Bowman should be read narrowly so as not to conflict with these more recent pronouncements on extraterritoriality. Reading Bowman as limited to its facts, only criminal statutes, and perhaps only those relating to the government’s power to prosecute wrongs committed against it, are exempt from the presumption. Bowman, 260 U.S. at 98, 43 S.Ct. at 41; cf. United States v. Larsen, 952 F.2d 1099, 1100-01 (9th Cir.1991) (applying Bowman to hold that 21 U.S.C. § 841(a)(1) may be applied" }, { "docid": "7362973", "title": "", "text": "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 accessory after the fact to the murder of a DEA agent in Mexico). Thus, courts do not apply the territorial presumption where it is not a reliable guide to congressional intent. When Congress is considering the scope of federal jurisdiction, its attention is focused precisely on how far U.S. law should reach. Unlike ordinary domestic statutes, jurisdictional statutes inherently present the question of how far Congress wishes U.S. law to extend. There is therefore no reason to presume that Congress did, or did not, mean to act extraterritorially. Rather, we agree with Bin Laden that “[w]hen presented with the task of interpreting jurisdictional statutes such as [subsection] 7(3), courts should simply employ the standard tools of statutory interpretation” 92 F.Supp.2d at 206 n. 32. Applying the territorial presumption to subsection 7(3) would be a mistake for another reason: Land subject to subsection 7(3) is not “extraterritorial,” as the Supreme Court has defined the term. In Aramco, the Court described territorial jurisdiction as including “places over which the United States has sovereignty or has some measure" }, { "docid": "23382896", "title": "", "text": "(1993), does not apply to criminal statutes. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922); see also Yousef, 327 F.3d at 86. When the text of a criminal statute is silent, Congressional intent to apply the statute ex-traterritorially must “be inferred from the nature of the offense.” Bowman, 260 U.S. at 98, 43 S.Ct. 39. Four of the five counts on which the defendants were convicted — conspiracy to kill U.S. nationals, conspiracy to acquire and export SAMs, conspiracy to aid a known terrorist organization, and money laundering — contain explicit provisions applying them extraterritorially. See 18 U.S.C. § 2332(b); id. § 2332g (b); id. § 2339B (d); id. § 1956(b)(2). Although the conspiracy to kill U.S. officers or employees count, id. §§ 1114, 1117, contains no explicit extraterritoriality provision, the nature of the offense — protecting U.S. personnel from harm when acting in their official capacity — implies an intent that it apply outside of the United States. The provision protects U.S. employees, and a significant number of those employees perform their duties outside U.S. territory. District courts in our Circuit have applied it so, as have courts in other circuits. See, e.g., United States v. Benitez, 741 F.2d 1312, 1317 (11th Cir.1984) (applying §§ 1114, 1117 extraterritorially); United States v. Bin Laden, 92 F.Supp.2d 189, 202 (S.D.N.Y.2000) (applying § 1114 extraterritorially). We join them and conclude that §§ 1114 and 1117 apply extraterritorially. When Congress so intends, we apply a statute extraterritorially as long as doing so does not violate due process. Yousef, 327 F.3d at 86. “‘In order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair.’ ” Id. at 111 (quoting United States v. Davis, 905 F.2d 245, 248-49 (9th Cir.1990)). For non-citizens acting entirely abroad, a jurisdictional nexus exists when the aim of that activity is to cause harm inside the United States or to U.S. citizens or interests." }, { "docid": "7363031", "title": "", "text": "State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. Neither precedent nor logic supports the majority’s conclusion that the extraterritoriality presumption is inapplicable because a jurisdictional statute is at play. Under Bowman, the presumption clearly applies to criminal statutes. See Bowman, 260 U.S. at 98, 43 S.Ct. 39. And the majority’s effort to avoid the presumption because § 7(3) defines territorial jurisdiction is bootstrapping at its worst. Although jurisdictional statutes address how far Congress wishes to extend U.S. law, absent clear language or some meaningful signal, such statutes do not necessarily indicate whether Congress intended extraterritorial jurisdiction. The majority’s conclusion that we “should simply employ the standard tools of statutory interpretation” when interpreting § 7(3), see Maj. Op. at 1171 (quoting Bin Laden, 92 F.Supp.2d at 206 n. 32), brings us right back to the question at hand. In § 7(3), Congress defined “territorial jurisdiction.” But “territorial” cannot be equated with “extraterritorial,” and hence, we still need to determine whether Congress intended to extend the reach of “territorial jurisdiction” to foreign lands. To proceed otherwise would allow an end-run around the requirement that Congress must be explicit in demonstrating its intent to legislate extraterritorially. Nevertheless, the majority relies on the jurisdictional nature of § 7(3) as a reason to avoid application of the presumption. This position has been adopted by one district court in New York, see United States v. Bin Laden, 92 F.Supp.2d 189, 206 n. 32 (S.D.N.Y.2000), but subsequently was criticized by the Second Circuit in Gatlin. Although a district court opinion from another circuit would have no precedential value in this court, in some cases it might be instructive; but that is hardly the case here when the decision was already disavowed by the Second Circuit. See also United States v. Erdos, 474 F.2d 157, 160 (4th Cir.1973) (failing to address canon of construction and explaining that “[w]here the power of the Congress is clear, and the language of the exercise is broad, we perceive no duty to construe a statute narrowly.”). In its effort to" }, { "docid": "23493848", "title": "", "text": "failure to do so will negative the purpose of Congress in this regard. Id. at 98, 43 S.Ct. 39. The Court nonetheless concluded that charges could be brought in district court in that case, because “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 ivherever perpetrated, especially if committed by its own citizens, officers, or agents.” Id. (emphasis supplied). In other words, the presumption against extraterritoriality does apply to criminal statutes, except in situations where the law at issue is aimed at protecting “the right of the government to defend itself.” Id. Indeed, we have repeatedly observed that Bowman makes precisely this distinction. For example, in United States v. Gatlin, 216 F.3d 207 (2d Cir.2000), we observed that “[sjtatutes prohibiting crimes against the United States government may be applied extraterritorially even in the absence of ‘clear evidence’ that Congress so intended,” but that “the Bowman Court explicitly stated that the presumption against extraterritoriality does apply to ‘[cjrimes against private individuals or their property----’ ” Id. at 211 n. 5 (quoting Bowman, 260 U.S. at 98, 43 S.Ct. 39) (emphases in Gatlin); see also Yousef, 327 F.3d at 87-88. And, we have explicitly recognized that “although there is no general bar against the extraterritorial application of our criminal laws to American citizens, the Supreme Court has long recognized a presumption against such applications.” United States v. Kim, 246 F.3d 186, 188-89 (2d Cir.2001); see also Small v. United States, 544 U.S. 385, 388-89, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005) (using the presumption against extraterritoriality as guidance in the criminal context); United States v. Ayesh, 702 F.3d 162, 166 (4th Cir.2012) (“Whether Congress has exercised that authority is a matter of statutory construction and, generally, statutes enacted by Congress, including criminal statutes, apply only within the territorial jurisdiction of the United States.”). The government nonetheless argues that we have previously interpreted Bowman as limiting the presumption" }, { "docid": "9893718", "title": "", "text": "supra note 18. Our decision today is only the latest consequence of Congress’s failure to close this jurisdictional gap. III. In closing, it is worth emphasizing several features of our holding today. First, our holding extends only to conduct outside the territorial boundaries of the United States for which 18 U.S.C. § 7(3) is the sole jurisdictional basis. Some federal criminal statutes are expressly extraterritorial, see, e.g., 18 U.S.C. § 112(e) (protection of foreign officials, official guests, and internationally protected persons), and some criminal statutes — for example, offenses against the United States government — apply extraterritorially whether or not there is “clear evidence” of such intent by Congress due to the nature of the offenses involved, see United States v. Bowman, 260 U.S. 94, 98-99, 43 S.Ct. 39, 67 L.Ed. 149 (1922). See generally Bin Laden, 92 F.Supp.2d at 193-97. Our holding does not affect these categories of statutes. Second, although Congress has not provided any jurisdiction to try civilians like Gatlin who commit crimes on military installations abroad, such individuals are usually subject to prosecution by the country in which such installations are based— in Gatlin’s case, by Germany. Finally, it clearly is within Congress’s power to change the effect of this ruling by passing legislation to close the jurisdictional gap. It is- for this reason that we have taken the unusual step of directing the Clerk of the Court to forward a copy of this opinion to the Chairmen of the Senate and House Armed Services and Judiciary Committees. In doing so, we should not be understood to express a view on the justice or wisdom of any potential legislation. In our system of government, “[t]he responsibility for the justice or wisdom of legislation rests with the Congress, and it is the province of the courts to enforce, not to make, the laws.” United States v. First Nat’l Bank of Detroit, 234 U.S. 245, 260, 34 S.Ct. 846, 58 L.Ed. 1298 (1914). We merely note that this issue may warrant further congressional scrutiny. In sum, we hold that 18 U.S.C. § 7(3) does not apply extraterritorially. Therefore," }, { "docid": "21539949", "title": "", "text": "at 8:4-5. Under Morrison, without a “clear” and “affirmative indication” of .Congress’s intent to have the bribery and wire fraud statutes apply extraterritorially, the presumption is that they, do not. See 561 U.S. at 265, 130 S.Ct. 2869. 2. Bowman The government argues, however, that a 1922 Supreme Court case allows for the wire fraud and bribery statutes to apply abroad. Resp. at 4-14. In United States v. Bowman, the Court held that a statute criminalizing conspiracy to defraud a corporation in which the United States was the sole stockholder applied extraterritorially. 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). While Bowman may still be good law; the government’s reliance on it here is misplaced. Bowman involved United States citizens who were working for a corporation that was wholly owned by the United States. Id.- at 94-95, 43 S.Ct. 39. Those facts are very different from the facts at hand, which involve foreign citizens working for foreign entities, and whose actions were “begun and committed outside” of the United States. See, e.g., Ind. ¶¶ 25, 37. Indeed, in Bowman, in addition to the.three United States citizen defendants to whom the Court’s holdings applied, there was a fourth defendant, a “subject of Great Britain,” who had not been apprehended. 260 U.S. at 102, 43 S.Ct. 39. As to that defendant, the Bowman court held that “it will be-time enough to consider what, if any, jurisdiction the District Court below -has to' punish him when he is brought to trial.” Id. at 102-03, 43 S.Ct. 39 (emphasis added). This is hardly a ringing endorsement for the application of American criminal laws to foreign actors. Further, the government acknowledges Bowman’s holding that “frauds of all kinds” would not have extraterritorial ap: plication: 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" }, { "docid": "112053", "title": "", "text": "implied by the specific allegations made”) (citation omitted). Accordingly, defendants’ motion to dismiss Count 1 must be denied. Defendants’ arguments as to Count 2 are equally unavailing. Count 2 charges defendants with conspiring to kill officers and employees of the United States in violation of 18 U.S.C. § 1114. Defendants contend that, unlike the statutes involved in most of the counts of the Indictment, section 1114 does not include an express provision for extraterritorial application, and that, accordingly, Count 2 should be dismissed for lack of jurisdiction. Although there exists a “legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application,” Small v. United States, 544 U.S. 385, 388-89, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005), that presumption does not apply “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.” United States v. Bowman, 260 U.S. 94, 98-99, 43 S.Ct. 39, 67 L.Ed. 149 (1922). Accordingly, “[statutes prohibiting crimes against the United States government may be applied extraterritorially even in the absence of ‘clear evidence’ that Congress so intended.” United States v. Gatlin, 216 F.3d 207, 211 (2d Cir.2000). The statute in question here explicitly punishes those who kill or attempt to kill “any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties.” 18 U.S.C. § 1114. It is beyond question that the United States Government has a strong and legitimate interest in protecting its officers and employees performing official duties abroad. Thus, this statute, on its face, is clearly aimed at the Government’s right to defend itself, and unquestionably prohibits a “crime against the United States Government.” See Bin Laden, 92 F.Supp.2d at 202; see also United States v. Benitez, 741 F.2d 1312 (11th Cir.1984). Nothing in the text or legislative history of section 1114 suggests otherwise. Accordingly, extraterritorial" }, { "docid": "23493846", "title": "", "text": "statutes, and (2) the presumption against extraterritoriality applies to Section 10(b). i. Criminal Statutes First, the government is incorrect when it asserts that “the presumption against extraterritoriality for civil statutes ... simply does not apply in the criminal context.” Gov’t Br. 96. As we have observed, “[i]t is beyond doubt that, as a general proposition, Congress has the authority to ‘enforce its laws beyond the territorial boundaries of the United States.’ ” United States v. Yousef, 327 F.3d 56, 86 (2d Cir.2003) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)). But the courts have also recognized the “eom-monsense notion that 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), and “the presumption that United States law governs domestically but does not rule the world,” Kiobel, 133 S.Ct. at 1664 (internal quotation marks omitted). For these reasons, “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” Morrison, 130 S.Ct. at 2878. The government contends, relying on United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922), that the presumption against extraterritoriality has no place in our reading of criminal statutes. To the contrary, no plausible interpretation of Bowman supports this broad proposition; fairly read, Bowman stands for quite the opposite. In Bowman, the Supreme Court was asked to consider criminal charges brought against sailors who, while at sea, conspired to defraud a company owned by the United States. See id. at 95-96, 43 S.Ct. 39. The Court explained: 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" }, { "docid": "7363032", "title": "", "text": "the reach of “territorial jurisdiction” to foreign lands. To proceed otherwise would allow an end-run around the requirement that Congress must be explicit in demonstrating its intent to legislate extraterritorially. Nevertheless, the majority relies on the jurisdictional nature of § 7(3) as a reason to avoid application of the presumption. This position has been adopted by one district court in New York, see United States v. Bin Laden, 92 F.Supp.2d 189, 206 n. 32 (S.D.N.Y.2000), but subsequently was criticized by the Second Circuit in Gatlin. Although a district court opinion from another circuit would have no precedential value in this court, in some cases it might be instructive; but that is hardly the case here when the decision was already disavowed by the Second Circuit. See also United States v. Erdos, 474 F.2d 157, 160 (4th Cir.1973) (failing to address canon of construction and explaining that “[w]here the power of the Congress is clear, and the language of the exercise is broad, we perceive no duty to construe a statute narrowly.”). In its effort to avoid the presumption against extraterritoriality, the majority extends Bowman far beyond its holding or any reasonable extension of it. The majority states that “the presumption does not apply where the legislation implicates concerns that are not inherently domestic” and then cites Bowman as an example, explaining that in that case “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.” Maj. Op. at 1170-71. Bowman does not stand for such a far-reaching proposition. Rather, Bowman recognizes a narrow exception to the presumption against extraterritoriality for “criminal statutes which are, as a class, not logically dependant 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.” 260 U.S. at 98, 43 S.Ct. 39. There can be little doubt that the narrow Bowman exception does not cover the penal statutes at issue" }, { "docid": "7363030", "title": "", "text": "courts have examined the extraterritorial applicability of statutes with the view that Congress knows how to place crimes committed outside our borders within the jurisdictional reach of a statute. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 n. 7, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (explaining that Congress extended jurisdiction to vessels on the high seas in 18 U.S.C. § 7(1)); see also Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (“We assume that Congress legislates against the backdrop of the presumption against extraterritoriality.”). B. The Presumption Applies Here The statutes at issue here, 18 U.S.C. §§ 2241(a) and 2242(1), prohibit certain forms of sexual misconduct committed ‘“in the special maritime and territorial jurisdiction of the United States.... ” In turn, 18 U.S.C. § 7(3) defines “special maritime and territorial jurisdiction” as [a]ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. Neither precedent nor logic supports the majority’s conclusion that the extraterritoriality presumption is inapplicable because a jurisdictional statute is at play. Under Bowman, the presumption clearly applies to criminal statutes. See Bowman, 260 U.S. at 98, 43 S.Ct. 39. And the majority’s effort to avoid the presumption because § 7(3) defines territorial jurisdiction is bootstrapping at its worst. Although jurisdictional statutes address how far Congress wishes to extend U.S. law, absent clear language or some meaningful signal, such statutes do not necessarily indicate whether Congress intended extraterritorial jurisdiction. The majority’s conclusion that we “should simply employ the standard tools of statutory interpretation” when interpreting § 7(3), see Maj. Op. at 1171 (quoting Bin Laden, 92 F.Supp.2d at 206 n. 32), brings us right back to the question at hand. In § 7(3), Congress defined “territorial jurisdiction.” But “territorial” cannot be equated with “extraterritorial,” and hence, we still need to determine whether Congress intended to extend" }, { "docid": "23493847", "title": "", "text": "none.” Morrison, 130 S.Ct. at 2878. The government contends, relying on United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922), that the presumption against extraterritoriality has no place in our reading of criminal statutes. To the contrary, no plausible interpretation of Bowman supports this broad proposition; fairly read, Bowman stands for quite the opposite. In Bowman, the Supreme Court was asked to consider criminal charges brought against sailors who, while at sea, conspired to defraud a company owned by the United States. See id. at 95-96, 43 S.Ct. 39. The Court explained: 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. Id. at 98, 43 S.Ct. 39. The Court nonetheless concluded that charges could be brought in district court in that case, because “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 ivherever perpetrated, especially if committed by its own citizens, officers, or agents.” Id. (emphasis supplied). In other words, the presumption against extraterritoriality does apply to criminal statutes, except in situations where the law at issue is aimed at protecting “the right of the government to defend itself.” Id. Indeed, we have repeatedly observed that Bowman makes precisely this distinction. For example, in United States v. Gatlin, 216 F.3d 207 (2d Cir.2000), we observed that “[sjtatutes prohibiting crimes against the United States government may be applied extraterritorially even in the absence of ‘clear evidence’ that Congress so" }, { "docid": "3417706", "title": "", "text": "Foley was clearly meant to apply only to substantive statutory provisions. See Foley Bros., Inc., 336 U.S. at 285, 69 S.Ct. 575 (considering whether Congress intended to apply Federal law restricting the length of a work day to work performed in foreign countries); see also United States v. Bin Laden, 92 F.Supp.2d 189, 206 (S.D.N.Y.2000)(noting that the presumption against extraterritorial application only applies to statutory provisions that define offenses). In addition, the Gatlin Court applied a presumption to defeat the plain meaning of the language contained in subsection 7(3) providing for a broad concept of “territory” under the Federal criminal code. As noted in Foley, the presumption against extraterritorial application applies only in the absence of a clear intent to the contrary. 336 U.S. at 285, 69 S.Ct. 575; see also United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)(“In determining the scope of a statute, we look first to its language.”). Even if Appellant’s conviction involved an “extraterritorial application” of Federal law, such application was not in contravention of legislative intent or otherwise impermissible. It is now well-settled that Congress has the authority to enforce laws that apply beyond the borders of the United States. See Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (stating that “Congress has the authority to enforce its laws beyond the territorial boundaries of the United States.”); see also United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994)(noting that “[generally there is no constitutional bar to the extraterritorial application of United States penal laws.”). While it is true courts presume legislation is not meant to have extraterritorial application, this presumption is merely a canon of statutory construction that can be, and often is, rebutted. Courts have deemed this presumption overcome where the exercise of extraterritorial power can be “inferred from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.1990)(quoting United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980)). The ultimate question remains whether there are sufficient indicia of" }, { "docid": "9893722", "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.” 260 U.S. at 98, 43 S.Ct. 39 (emphasis added). With respect to such statutes, the Supreme Court reasoned, Congress’s intent to regulate conduct abroad may \"be inferred from the nature of the offense.” Id.; see also Skiriotes v. Florida, 313 U.S. 69, 73-74, 61 S.Ct. 924, 85 L.Ed. 1193 (1941). In the present case, the Government understandably makes no argument that the Bowman rule applies since Gatlin committed a crime against a private individual. Indeed, the Bowman Court explicitly stated that the presumption against extraterritoriality does apply to \"[c]rimes against» private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds.” Bowman, 260 U.S. at 98, 43 S.Ct. 39; see also Kollias v. D & G Marine Maintenance, 29 F.3d 67, 71. (2d Cir.1994) (holding that \"Bowman should be read narrowly,” such that \"only criminal statutes, and perhaps only those relating to the government’s power to prosecute wrongs committed against it, are exempt from the presumption [against extraterritoriality]”). . Gatlin concedes that the United Slates exercises some jurisdiction over Lincoln Village by virtue of the SOFA. Nevertheless, he argues that the United States lacks jurisdiction with respect to him because the SOFA grants jurisdiction only to the United States \"military authorities” and only over \"persons subject to the military law of [the United States].” SOFA art. VII, § 1(a), 4 U.S.T. at 1798. As a civilian, under the circumstances presented, Gatlin is not subject to the military law of the United States. . In the present case, both parties appear to agree that the presumption against extraterritoriality applies. However, in a recent opinion involving the same jurisdictional provision at issue here, 18 U.S.C. § 7(3), Judge Sand declined to apply the presumption against extraterritoriality. See United States v. Bin Laden, 92 F.Supp.2d 189, 206 n. 32 (S.D.N.Y.2000). The" }, { "docid": "7363064", "title": "", "text": "applies. However, in a recent opinion involving the same jurisdictional provision at issue here, 18 U.S.C. § 7(3), Judge Sand declined to apply the presumption against extraterritoriality. See United States v. Bin Laden, 92 F.Supp.2d 189, 206 n. 32 (S.D.N.Y.2000). The presumption, Judge Sand reasoned, \"was designed to apply to provisions that define offenses. When presented with the task of interpreting jurisdictional statutes such as Section 7(3), courts should simply employ the standard tools of statutory interpretation: analysis of text, structure, and legislative history.” Id. We respectfully disagree with Judge Sand. Although § 7(3) is the immediate focus of our inquiry, the ultimate question here is whether a criminal statute — i.e., 18 U.S.C. § 2243(a) — applies extraterritorially. The presumption against extraterritoriality plainly applies to criminal statutes (other than the Bowman variety ...), so § 2243(a) applies extraterritorially only if there is a clear manifestation of Congress's affirmative intent. That this inquiry requires us to look to Congress’s intent in enacting 18 U.S.C. § 7, which is incorporated by reference in § 2243(a), does not, in our view, alter the applicable rule of statutory interpretation. Indeed, to accept Judge Sand’s view would seriously undermine the presumption against extraterritoriality since Congress often enacts jurisdictional provisions that are then incorporated by reference elsewhere. Gatlin, 216 F.3d at 212 n. 6. . This exception, however, applies to statutes involving crimes against the government, see, e.g., United States v. Cotten, 471 F.2d 744 (9th Cir.1973), and crimes relating to drug smuggling, see United States v. Larsen, 952 F.2d 1099 (9th Cir.1991) (marijuana smuggling). . See Skiriotes, 313 U.S. at 73-74, 61 S.Ct. 924 (“[A] criminal statute dealing with acts that are directly injurious to the government, and are capable of perpetration without regard to particular locality, is to be construed as applicable to the citizens of the United States upon the high seas or in a foreign country, though there be no express declaration to that effect.”) (citing Bowman); United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir.1977) (\"[I]f the nature of the law does not mandate its extraterritorial application, then a" }, { "docid": "23493849", "title": "", "text": "intended,” but that “the Bowman Court explicitly stated that the presumption against extraterritoriality does apply to ‘[cjrimes against private individuals or their property----’ ” Id. at 211 n. 5 (quoting Bowman, 260 U.S. at 98, 43 S.Ct. 39) (emphases in Gatlin); see also Yousef, 327 F.3d at 87-88. And, we have explicitly recognized that “although there is no general bar against the extraterritorial application of our criminal laws to American citizens, the Supreme Court has long recognized a presumption against such applications.” United States v. Kim, 246 F.3d 186, 188-89 (2d Cir.2001); see also Small v. United States, 544 U.S. 385, 388-89, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005) (using the presumption against extraterritoriality as guidance in the criminal context); United States v. Ayesh, 702 F.3d 162, 166 (4th Cir.2012) (“Whether Congress has exercised that authority is a matter of statutory construction and, generally, statutes enacted by Congress, including criminal statutes, apply only within the territorial jurisdiction of the United States.”). The government nonetheless argues that we have previously interpreted Bowman as limiting the presumption against extraterritoriality to civil statutes. The government draws our attention to United States v. Siddiqui, 699 F.3d 690 (2d Cir.2012), where we stated that “[tjhe ordinary presumption that laws do not apply extraterri-torially has no application to criminal statutes,” id. at 700, and United States v. Al Kassar, 660 F.3d 108 (2d Cir.2011), where we similarly wrote that “[tjhe presumption that ordinary acts of Congress do not apply extraterritorially ... does not apply to criminal statutes,” id. at 118. However broadly worded, these statements must be understood in their context. In Al Kassar, we considered the extraterritorial application of four counts of conviction that relied on statutes with “explicit provisions applying them extraterritorially,” and one count for “conspiracy to kill U.S. officers or employees,” which we held applies extraterritorially in light of “the nature of the offense—protecting U.S. personnel from harm when acting in their official capacity.” Al Kassar, 660 F.3d at 118. Siddiqui also addressed statutes designed to protect U.S. personnel engaged in the performance of their duties from assault or interference. Siddiqui, 699" } ]

[ { "docid": "20393171", "title": "", "text": "and the audio recording of that transaction captured by Carney-Hatch's body wire. . Rigaud pleaded guilty to one count of Conspiracy to Distribute and Possess with Intent to Distribute Cocaine Base in violation of 21 U.S.C. § 846, one count of Possession with Intent to Distribute Cocaine Base in violation of 21 U.S.C. § 841(a)(1), and one count of Possession with Intent to Distribute and Distribution of Cocaine Base in violation of 21 U.S.C. § 841(a)(1). . The government dismissed one count of Felon-in-Possession of Firearm and Ammunition in violation of 18 U.S.C. § 922(g)(1) and one count of Possession of Firearm in Furtherance of Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A). . Rigaud’s argument that he was entitled to’ an evidentiary Franks hearing is his fallback position. He first argues that he was entitled to suppression. We focus our analysis on the Franks issue. If Rigaud was not able to make the showing required for a Franks hearing, it follows that he also was not entitled to have his motion to suppress granted. . There is “an important difference between the ‘necessary’ inquiries when the challenge is to the omission of an allegedly material fact rather than to the inclusion of an allegedly false material statement. With an omission, the inquiry is whether its inclusion in an affidavit would have led to a negative finding by the magistrate on probable cause. If a false statement is in the affidavit, the inquiry is whether its inclusion was necessary for a positive finding by the magistrate on probable cause.” United States v. Castillo, 287 F.3d 21, 25 n. 4 (1st Cir.2002). . Because we conclude that the district court did not err in its evaluation of the affidavit, we do not reach Rigaud's argument regarding the Leon good faith exception. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (holding that evidence obtained in good faith by law enforcement officers relying upon a search warrant may be used in a criminal trial even if the warrant is subsequently deemed invalid). . The" } ]

[ { "docid": "22943756", "title": "", "text": "supporting arrests warrants are presumptively valid. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. A defendant may challenge the validity of the government’s affidavit by making a substantial preliminary showing that a false statement was included in the warrant affidavit knowingly and intentionally or with reckless disregard for the truth. Id. If a challenged statement was necessary to support probable cause for the search, the District Court must hold an evidentiary hearing. Id. at 171-72, 98 S.Ct. at 2684. If, however, probable cause still exists once the false statement is removed from the warrant, there is no need to hold a Franks hearing. Id.; see also Kapordelis, 569 F.3d at 1309 (“[E]ven intentional or reckless omissions will invalidate a warrant only if inclusion of the omitted facts would have prevented a finding of probable cause.”) (quotation marks omitted). The defendant bears the burden of showing that, “absent those misrepresentations or omissions, probable cause would have been lacking.” United States v. Novaton, 271 F.3d 968, 987 (11th Cir.2001). Whether there was probable cause to support a search warrant is a question reviewed de novo, but we must “take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir.2000) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). In this case, after hearing Parker’s testimony that she did not consent and the agents’ testimony to the contrary, the Magistrate Court found that Parker’s “version of events is not credible because it is inconsistent with the credible testimony of the other witnesses.” After reviewing the law governing Franks hearings, the Magistrate Court concluded: Gamory has not met the strict standard for obtaining a Franks hearing. The only falsity or omission alleged by Gamory concerns whether Parker consented to the search of the garage. However, Gamory has not made a substantial preliminary showing that Agent Larsen knowingly and intentionally made a false statement in" }, { "docid": "19235219", "title": "", "text": "States v. Rigaud, 684 F.3d 169, 173 (1st Cir.2012) (internal quotation marks omitted). First, the defendant must show “that a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth.” Id.; see also Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; Grant, 218 F.3d at 77. Second, this “falsehood or omission [must have been] necessary to the finding of probable cause.” Rigaud, 684 F.3d at 173. In the case of an omission, this means establishing that the inclusion of the omitted information “would have led to a negative finding by the magistrate on probable cause.” Id. at 173 n. 5. A failure to make a showing on either of these two elements dooms the defendant’s challenge. Id. at 173. If, however, this preliminary showing is made, the defendant is entitled to a hearing — known as a Franks hearing — where he or she can try to establish by a preponderance of the evidence that the affiant did in fact make a false statement or omission “knowingly and intentionally, or with reckless disregard for the truth” and that “with the recklessly omitted information added to the affidavit, the reformed affidavit fails to establish probable cause.” Gifford, 727 F.3d at 98 (internal quotation marks omitted); see also Franks, 438 U.S. at 156, 98 S.Ct. 2674; Rigaud, 684 F.3d at 173. Should the defendant establish by proof that these standards have been met, the warrant is voided and the fruits of the search are excluded. Gifford, 727 F.3d at 98; see also Franks, 438 U.S. at 156, 98 S.Ct. 2674; Rigaud, 684 F.3d at 173. As to the second prong, a warrant is based on probable cause when “‘the affidavit upon which a warrant is founded demonstrates in some trustworthy fashion the likelihood that an offense has been committed and that there is sound reason to believe that a particular search will turn up evidence of it.’ ” United States v. Chiaradio, 684 F.3d 265, 279 (1st Cir.2012) (quoting United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.1988)). It is not necessary," }, { "docid": "9985520", "title": "", "text": "electricity than the target house was meaningless since there could be numerous innocuous explanations for the variation in electricity usage having nothing to do with a marijuana grow operation. Since neither the odor nor the electricity consumption corroborated the informant’s tip, the court concluded that the reformed affidavit — including the omitted information — lacked probable cause. The district court thus issued an order suppressing the evidence seized from Gifford’s home. The Government timely appealed the suppression order. II. Discussion The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .... ” U.S. Const. amend. IV. With limited exceptions, it requires police officers to secure a search warrant supported by probable cause prior to effecting a search or seizure. United States v. Paneto, 661 F.3d 709, 713 (1st Cir.2011). Probable cause exists when the totality of the circumstances suggests that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Hicks, 575 F.3d 130, 136 (1st Cir.2009) (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir.1999)) (internal quotation marks omitted). Information supporting probable cause for a warrant is often set forth in an affidavit provided by a law enforcement officer, as happened here. See United States v. Rigaud, 684 F.3d 169, 173 (1st Cir.2012). An affidavit supporting a search warrant is presumptively valid. Id. But if a defendant makes a “substantial preliminary showing that a false statement ... 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.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). For a warrant to be voided and the fruits of a search excluded, the defendant must: (1) show that the affiant in fact made a false statement or omission “knowingly and intentionally, or with reckless disregard for" }, { "docid": "21339186", "title": "", "text": "beef sold at Nick’s in formulating his opinion that Nick’s underreported gross sales, (2) omitted material information about the CIs’ biases against the defendants, and (3) ignored red flags raised about the CIs’ credibility and failed to make a reasonable inquiry into their reliability. The government responds that the agent reasonably relied on Cl l’s statements regarding the amount of roast beef sold, that the agent properly disclosed the CIs’ biases, and that the agent had no duty to conduct any further inquiry into the CIs’ truthfulness. To obtain a Franks hearing, the defendants 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 that the “allegedly false statement [was] necessary to the finding of probable cause.” United States v. Castillo, 287 F.3d 21, 25 (1st Cir.2002) (quoting Franks v. Delaware, 438 U.S. 154, 155—56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). “Suppression of the evidence seized is justified if, at such a hearing, the defendant proves intentional or reckless falsehood by preponderant evidence and the affidavit’s creditworthy averments are insufficient to establish probable cause.” United States v. Tanguay, 787 F.3d 44, 49 (1st Cir.2015). “To prove reckless disregard for the truth, the defendant must prove that the affiant in fact entertained serious doubts as to the truth of the allegations.” United States v. Ranney, 298 F.3d 74, 78 (1st Cir.2002) (citation omitted). “Recklessness may be inferred from circumstances evincing obvious reasons to doubt the veracity of the allegations.” Id. (citation omitted). “A material omission of information may also trigger a Franks hearing.” Castillo, 287 F.3d at 25. “The required showing is two-fold: first, the omission must have been either intentional or reckless; and second, the omitted information, if incorporated into the affidavit, must be sufficient to vitiate probable cause.” Tanguay, 787 F.3d at 49. “Because there is no requirement that every shred of known information be included in a warrant affidavit, the omission of a particular detail, without more, is not enough to satisfy the mens rea element of" }, { "docid": "13518683", "title": "", "text": "warrant affidavit of facts unknown to the affiant at the time of the application. The starting point for the consideration of both of these claims of error is the same. In Franks, the Supreme Court established that, under the Fourth and Fourteenth Amendments, a defendant is entitled to an evidentiary hearing to test the veracity of a warrant affidavit if he can make a substantial showing that the affi-ant intentionally or with reckless disregard for the truth included a false statement in the affidavit, which statement was necessary to the finding of probable cause. See 438 U.S. at 155-56, 98 S.Ct. 2674. Suppression of the evidence seized is justified if, at such a hearing, the defendant proves intentional or reckless falsehood by preponderant evidence and the affidavit’s creditworthy averments are insufficient to establish probable cause. See id. at 156, 98 S.Ct. 2674. Material omissions from a warrant affidavit also may furnish the basis for a successful Franks challenge. See United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990). The required showing is two-fold: first, the omission must have been either intentional or reckless; and second, the omitted information, if incorporated into the affidavit, must be sufficient to vitiate probable cause. See United States v. Castillo, 287 F.3d 21, 25 & n. 4 (1st Cir.2002); see also United States v. Tate, 524 F.3d 449, 456-57 (4th Cir.2008) (“A ‘literally true’ affidavit ... can be intentionally misleading if it deliberately omitted material facts which, when included, would defeat the probable cause showing and thus render false the original ‘literally true’ affidavit.”). Because there is no requirement that every shred of known information be included in a warrant affidavit, the omission of a particular detail, without more, is not enough to satisfy the mens rea element of the Franks test. See United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir.1990). Rather, an omission triggers the exclusionary rule only if it is “designed to mislead, or ... made in reckless disregard of'whether [it] would mislead, the magistrate” in his appraisal of the affidavit. Id. at 301 (emphasis omitted). Recklessness may be inferred" }, { "docid": "9279418", "title": "", "text": "and challenge the veracity\" of the warrant application at a pretrial hearing. United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). Such a hearing is eponymously called a Franks hearing. See, e.g., id.; United States v. Hicks, 575 F.3d 130, 135-36 (1st Cir. 2009). The Franks Court held that if a defendant can show, by a preponderance of the evidence, that there were false statements included in the warrant affidavit and that, with the \"false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the ... warrant must be voided and the fruits ... excluded to the same extent as if probable cause was lacking on the face of the affidavit.\" 438 U.S. at 156, 98 S.Ct. 2674. Even so, a defendant is not entitled to a Franks hearing as of right. Instead, he must make a threshold showing sufficient to persuade the district court that a reasonable basis exists for believing that such a hearing is indicated. See United States v. Gordon, 871 F.3d 35, 51 (1st Cir. 2017) ; Arias, 848 F.3d at 510-11. A defendant who makes an adequate threshold showing is entitled, on timely motion, to a pretrial determination. See Arias, 848 F.3d at 511 ; United States v. Graf, 784 F.3d 1, 3 (1st Cir. 2015). We described this threshold showing in United States v. Tanguay (Tanguay I ) : In Franks, the Supreme Court established that, under the Fourth and Fourteenth Amendments, a defendant is entitled to an evidentiary hearing to test the veracity of a warrant affidavit if he can make a substantial showing that the affiant intentionally or with reckless disregard for the truth included a false statement in the affidavit, which statement was necessary to the finding of probable cause. See 438 U.S. at 155-56, 98 S.Ct. 2674. Suppression of the evidence seized is justified if, at such a hearing, the defendant proves intentional or reckless falsehood by preponderant evidence and the affidavit's creditworthy averments are insufficient to establish probable cause. See id. at 156, 98 S.Ct. 2674. Material omissions from a warrant" }, { "docid": "19235222", "title": "", "text": "YOUCANT-SEEMETOO e-group on Multiply.com, which was registered with a California zip code; and (3) the links between these child pornographic activities and IP addresses traced to Dennis Truso, Greg Little, and others, but not to Darryl J. St. Yves (collectively, the “Omitted Information”). This information, according to McLellan, revealed that whoever a35seott was, he or she was nomadic and never remained at the same place for very long, and thus when the FBI applied for the warrant two months after Agent Patel’s single December 1 Download, there was no longer probable cause to believe that a35scott would still be at 180 High Street. In other words, the information contained in the affidavit was stale. ' ‘ The parties do not dispute that this information was omitted from the affi davit, though they, do disagree over whether or not the omission was intentional and/or reckless. We need not decide this, however, because the inclusion of the Omitted Information would have been immaterial to the probable cause determination. See Rigaud, 684 F.3d at 173 (“In this case, we need not address the first Franks requirement, because [the defendant] has plainly failed to meet the second (establishing the effect of the omission on the probable cause showing).”). Information contained in an affidavit is stale if it established probable cause at some point in the past but does not support probable cause at the time of the warrant’s issuance. Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932) (“[I]t is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.”). “When evaluating a claim of staleness, we do not measure the timeliness of information simply by counting the number of days that have elapsed. Instead, we must assess the nature of the information, the nature and characteristics of the suspected criminal activity, and the likely endurance of the information.” Morales-Aldahondo, 524 F.3d at 119. Here, the Omitted Information would not have led the magistrate to conclude that" }, { "docid": "9279419", "title": "", "text": "(1st Cir. 2017) ; Arias, 848 F.3d at 510-11. A defendant who makes an adequate threshold showing is entitled, on timely motion, to a pretrial determination. See Arias, 848 F.3d at 511 ; United States v. Graf, 784 F.3d 1, 3 (1st Cir. 2015). We described this threshold showing in United States v. Tanguay (Tanguay I ) : In Franks, the Supreme Court established that, under the Fourth and Fourteenth Amendments, a defendant is entitled to an evidentiary hearing to test the veracity of a warrant affidavit if he can make a substantial showing that the affiant intentionally or with reckless disregard for the truth included a false statement in the affidavit, which statement was necessary to the finding of probable cause. See 438 U.S. at 155-56, 98 S.Ct. 2674. Suppression of the evidence seized is justified if, at such a hearing, the defendant proves intentional or reckless falsehood by preponderant evidence and the affidavit's creditworthy averments are insufficient to establish probable cause. See id. at 156, 98 S.Ct. 2674. Material omissions from a warrant affidavit also may furnish the basis for a successful Franks challenge. See United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990). The required showing is two-fold: first, the omission must have been either intentional or reckless; and second, the omitted information, if incorporated into the affidavit, must be sufficient to vitiate probable cause. See United States v. Castillo, 287 F.3d 21, 25 & n.4 (1st Cir. 2002) ; see also United States v. Tate, 524 F.3d 449, 456-57 (4th Cir. 2008) (\"A 'literally true' affidavit ... can be intentionally misleading if it deliberately omitted material facts which, when included, would defeat the probable cause showing and thus render false the original 'literally true' affidavit.\"). Because there is no requirement that every shred of known information be included in a warrant affidavit, the omission of a particular detail, without more, is not enough to satisfy the mens rea element of the Franks test. See United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990). Rather, an omission triggers the exclusionary rule only if" }, { "docid": "19235226", "title": "", "text": "937, 940-41 (1st Cir.1992) (finding information in an affidavit not to be stale where events related to the conspiracy charge took place four years prior to the search warrant application because a co-conspirator was seen bribing a police officer one month before the warrant and the affiant had verified that a person related to the conspiracy was still designated as a record owner for the premises), abrogated on other grounds by Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000). But cf. United States v. Charest, 602 F.2d 1015, 1018 (1st Cir.1979) (finding sixteen days between date of murder and date of affidavit rendered information stale because it was “contrary to common sense and logic to expect a murderer to keep the murder weapon in his own premises for almost three weeks”). The Omitted Information, therefore, does not render a35scott’s link to 180 High Street in February 2010 stale, and as such does not negate the probable cause finding. See Rigaud, 684 F.3d at 173 n. 5 (“With an omission, the inquiry is whether its inclusion in an affidavit would have led to a negative finding by the magistrate on probable cause.”); Woodbury, 511 F.3d at 98 (explaining that a reviewing court examines an affidavit in “a practical, commonsense fashion” to determine whether it “would warrant a man of reasonable caution to believe that evidence of a crime will be found” (citations and internal quotation marks omitted)). Because McLellan failed to make this preliminary showing, he cannot satisfy the prerequisites for a Franks hearing. Accordingly, there was no error — let alone a clear error — in the district court’s decision to deny McLellaris request. B. The Motion to Suppress McLellan also argues that even taking the warrant as is — i.e., without considering the Omitted Information — his motion to suppress should have been granted because the “multi-unit” character of 180 High Street made the warrant insufficiently particular. As such, the search of his room exceeded the warrant’s permissible scope. Once again, we disagree. 1. Standard of Review Our review of the district court’s" }, { "docid": "19235218", "title": "", "text": "district court, ‘is simply to make a practical, common-sense decision whether, given all the circumstances[,] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). 2. The Requirements for a Franks Hearing The Fourth Amendment protects individuals against unreasonable intrusion by the government. This protection stems from the Amendment’s instruction that “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. As we have repeatedly emphasized, “[a]n affidavit supporting a search warrant is presumptively valid.” United States v. Gifford, 727 F.3d 92, 98 (1st Cir.2013). Still, a defendant may attempt to rebut this presumption and challenge the veracity of the affidavit. Id.; see also Franks, 438 U.S. at 171, 98 S.Ct. 2674. To do so, he or she must make “two substantial preliminary showings.” United States v. Rigaud, 684 F.3d 169, 173 (1st Cir.2012) (internal quotation marks omitted). First, the defendant must show “that a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth.” Id.; see also Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; Grant, 218 F.3d at 77. Second, this “falsehood or omission [must have been] necessary to the finding of probable cause.” Rigaud, 684 F.3d at 173. In the case of an omission, this means establishing that the inclusion of the omitted information “would have led to a negative finding by the magistrate on probable cause.” Id. at 173 n. 5. A failure to make a showing on either of these two elements dooms the defendant’s challenge. Id. at 173. If, however, this preliminary showing is made, the defendant is entitled to a hearing — known as a Franks hearing — where he or she can try to establish by a preponderance of the evidence that the affiant did in fact make a false statement or omission" }, { "docid": "11911654", "title": "", "text": "that the District Court erred by not granting his'attorney leave to file a suppression motion after the passing of the deadline that the District Court had set for the filing of suppression motions. Finally, Arias argues that the District Court erred by refusing to grant his attorney’s request, made shortly before the trial began, for a continuance. A. We start with the first of the four pre-trial rulings that Arias challenges: the District Court’s denial of Arias’s motion for a Franks hearing to “test the veracity of’ Detective Gecoya’s affidavit in applying for the warrant to place the GPS tracker on the Murano. United States v. Tanguay, 787 F.3d 44, 48 (1st Cir. 2015) (citing Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). If a defendant, by a preponderance of the evidence, shows at a Franks hearing that an affidavit in a warrant application contains false statements or omissions, made intentionally or with reckless disregard for the truth, and that a finding of probable cause would not have been made without those false statements or omissions, then the defendant is entitled to the suppression of evidence obtained under that warrant. Id. at 49. A defendant is entitled to a Franks hearing, however, only if he first makes a “substantial preliminary showing” of the same two requirements that he must meet at the hearing — that “a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth” and that the false statement or omission was “necessary to the finding of probable cause.” United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015) (quoting United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)). In considering a district court’s decision to deny a Franks hearing, we review factual determinations for clear error and the probable cause determination de novo. Tanguay, 787 F.3d at 49-50. Applying these standards, we find no error in the District Court’s determination that Arias did not make the necessary preliminary showing as to the first requirement — that the false statement was made knowingly and intentionally or" }, { "docid": "11911655", "title": "", "text": "omissions, then the defendant is entitled to the suppression of evidence obtained under that warrant. Id. at 49. A defendant is entitled to a Franks hearing, however, only if he first makes a “substantial preliminary showing” of the same two requirements that he must meet at the hearing — that “a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth” and that the false statement or omission was “necessary to the finding of probable cause.” United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015) (quoting United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)). In considering a district court’s decision to deny a Franks hearing, we review factual determinations for clear error and the probable cause determination de novo. Tanguay, 787 F.3d at 49-50. Applying these standards, we find no error in the District Court’s determination that Arias did not make the necessary preliminary showing as to the first requirement — that the false statement was made knowingly and intentionally or with reckless disregard for the truth. Arias bases his challenge to the denial of his request for a Franks hearing on the false statement in the affidavit that identifies Rodriguez as “Sarnie,” the driver of the Murano, a vehicle that was surv-eilled at the scene of a drug transaction. In fact, “Sarnie” was Arias and not Rodriguez,. and the person driving the car at that time was Bryan Gonzalez, otherwise known as “Chicken Legs.” The false statement thus had the effect of equating— wrongly — Rodriguez and “Sarnie” and thereby using Rodriguez to tie the Murano to “Sarnie’s” suspected drug trafficking. Arias contends Detective Gecoya made this false statement with reckless disregard for the truth. “Recklessness may be inferred ‘from circumstances evincing obvious reasons to doubt the veracity of the allegations.’ ” United States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002) (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984)). Arias argues that the affidavit itself reveals obvious reasons to doubt the veracity of the identification of the driver of" }, { "docid": "5928765", "title": "", "text": "the proceeds of their illegal activities. See United States v. Jefferson, 674 F.3d 332, 346 (4th Cir.2012) (Congressman); United States v. Espino, 32 F.3d 253, 256 (7th Cir.1994) (drug dealer). For those reasons, the searches were within the scope of the original warrant. The corresponding seizures of contraband were authorized by the second warrant and, independently, under the plain view exception to the warrant requirement. See Crooker, 688 F.3d at 8-9. Defendant’s motion to suppress that evidence will therefore be denied. VI. Motion for Franks Hearing Defendants Rose, Hicks and Frye separately moved for a Franks hearing to test the veracity of certain statements made by Agent Quinn. A. Standard A Franks hearing is warranted only if a defendant makes “substantial preliminary showings” that 1) a false statement or omission in a warrant affidavit was made knowingly or with reckless disregard for the truth and 2) the falsehood or omission was necessary to the finding of probable cause. United States v. Rigaud, 684 F.3d 169, 173 (1st Cir.2012). B. Application According to the defendants, Agent Quinn lied when he stated that Rose sold drugs to a confidential informant and Hicks owned and operated E-Customs, a' motorcycle-repair business where drug activities were observed. They also accuse Agent Quinn of omitting from the warrant application the success of traditional investigative methods, the involvement of other law-enforcement agencies and the possibility that Hicks shared trash barrels with his neighbors. They request a Franks hearing. Defendants have not met their burden of showing that a Franks hearing is neces sary. Rose’s assertion that he has never sold drugs to anyone is the type of conclusory, self-serving statement that courts have repeatedly concluded does not amount to a substantial preliminary showing warranting a Franks hearing. United States v. Moon, No. 11-10223-DJC, 2012 WL 2178923, at *5 (D.Mass. Jun. 13, 2012) (denying request for Franks hearing where defendant merely denied that he sold heroin). That Rose has a drug conviction on his record does not help his cause. Agent Quinn’s statement that Hicks owned and operated E-Customs with another individual and his “omission” that Hicks shared" }, { "docid": "20393159", "title": "", "text": "presumption may be refuted during a so-called Franks hearing. Franks, 438 U.S. at 171, 98 S.Ct. 2674. However, to get a Franks hearing, a party must first make two “substantial preliminary showings”: (1) that a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth; and (2) the falsehood or omission was necessary to the finding of probable cause. See id. at 155-56, 98 S.Ct. 2674; Hicks, 575 F.3d at 138; United States v. Castillo, 287 F.3d 21, 25 (1st Cir.2002). Failure to make a showing on either element dooms a party’s hearing request. In the event that a hearing is granted and “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 [or the omitted material included], the affidavit’s ... 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, 438 U.S. at 156, 98 S.Ct. 2674. In this case, we need not address the first Franks requirement, because Rigaud has plainly failed to meet the second (establishing the effect of the omission on the probable cause showing). The district court noted that the “proper inquiry is not whether probable cause would have existed if the affidavit had revealed what Trainor hid going into and returning from the controlled buys but rather whether probable cause could be found if the affidavit stated that Molis did not search Trainor’s underwear and body cavities and was generally more explicit about the searches actually performed.” The court found that because underwear and body cavity searches are not required in controlled buys, a magistrate would not find an “affidavit fatally defective for explicitly acknowledging a failure to do what the law does not require.” Moreover, despite Trainor’s later admissions, the district court found that the controlled buys apparently went “exactly as planned and, on five occasions," }, { "docid": "4414061", "title": "", "text": "or Omissions in a Warrant Affidavit. Defendants have a limited right to challenge in their criminal proceedings the truthfulness of statements made in an affidavit supporting an ex parte application for a search warrant. See Franks v. Delaware, 438 U.S. at 155-56, 98 S.Ct. 2674. As the Supreme Court has stated: [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. at 155-56, 98 S.Ct. 2674. Franks v. Delaware’s standards apply to material omissions as well as to affirmative falsehoods. See United States v. Avery, 295 F.3d 1158, 1166 (10th Cir.2002) (citing United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir.2000)). “If, however, the district court concludes that the omitted information would not have altered the magistrate judge’s decision to authorize the search, then the fruits of the challenged search need not be suppressed.” United States v. Avery, 295 F.3d at 1167. “In a case where the defendant alleges information was intentionally omitted from an affidavit, the existence of probable cause is determined by examining the affidavit as if the omitted information had been included and determining whether the affidavit would still give rise to probable cause.” United States v. Basham, 268 F.3d 1199, 1204 (10th Cir.2001). Thus, the Tenth Circuit has held that, even if an officer “intentionally withheld information that the media would be present during the execution of the" }, { "docid": "5928764", "title": "", "text": "of the warrant. In general rule is that any container situated within residential premises which are [sic] the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant. United States v. Crooker, 688 F.3d 1, 8 (1st Cir.2012). The question is whether the items could be secreted in the places searched, not whether they often are. Papers and cash might be stored anywhere inside a house, including a hallway linen closet and even a basement freezer, so agents were not restricted to searching desks and piggy banks. See United States v. Romo-Corrales, 592 F.3d 915, 920 (8th Cir.2010) (“[P]aper documents can obviously fit into small spaces and containers and, therefore, could be hidden in numerous locations in a residence ... in the laundry hamper, garage, cooler, behind a mirror or picture, behind a dresser, and underneath the bed.”). Indeed, as the government points out, freezers have been used by drug dealers and United States Congressmen alike to hide the proceeds of their illegal activities. See United States v. Jefferson, 674 F.3d 332, 346 (4th Cir.2012) (Congressman); United States v. Espino, 32 F.3d 253, 256 (7th Cir.1994) (drug dealer). For those reasons, the searches were within the scope of the original warrant. The corresponding seizures of contraband were authorized by the second warrant and, independently, under the plain view exception to the warrant requirement. See Crooker, 688 F.3d at 8-9. Defendant’s motion to suppress that evidence will therefore be denied. VI. Motion for Franks Hearing Defendants Rose, Hicks and Frye separately moved for a Franks hearing to test the veracity of certain statements made by Agent Quinn. A. Standard A Franks hearing is warranted only if a defendant makes “substantial preliminary showings” that 1) a false statement or omission in a warrant affidavit was made knowingly or with reckless disregard for the truth and 2) the falsehood or omission was necessary to the finding of probable cause. United States v. Rigaud, 684 F.3d 169, 173 (1st Cir.2012). B. Application According to the defendants, Agent" }, { "docid": "9985521", "title": "", "text": "v. Hicks, 575 F.3d 130, 136 (1st Cir.2009) (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir.1999)) (internal quotation marks omitted). Information supporting probable cause for a warrant is often set forth in an affidavit provided by a law enforcement officer, as happened here. See United States v. Rigaud, 684 F.3d 169, 173 (1st Cir.2012). An affidavit supporting a search warrant is presumptively valid. Id. But if a defendant makes a “substantial preliminary showing that a false statement ... 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.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). For a warrant to be voided and the fruits of a search excluded, the defendant must: (1) show that the affiant in fact made a false statement or omission “knowingly and intentionally, or with reckless disregard for the truth,” (2) make this showing by a preponderance of the evidence, and (3) show that, with the recklessly omitted information added to the affidavit, the reformed affidavit fails to establish probable cause. United States v. Tzannos, 460 F.3d 128, 136 (1st Cir.2006). An allegation is made with “reckless disregard for the truth” if the affiant “in fact entertained serious doubts as to the truth of the allegations or where circumstances evinced obvious reasons to doubt the veracity of the allegations in the application.” Burke v. Town of Walpole, 405 F.3d 66, 81 (1st Cir.2005) (quoting United States v. Ranney, 298 F.3d 74, 78 (1st Cir.2002)) (internal quotation marks omitted). “In the ease of allegedly material omissions, reck lessness may be inferred where the omitted information was critical to the probable cause determination.” Id. at 81-82 (internal quotation marks omitted). Where the primary basis for a probable cause determination is information provided by a confidential informant, the affidavit must provide some information from which a magistrate can credit the informant’s credibility. United States v. Barnard," }, { "docid": "19235220", "title": "", "text": "“knowingly and intentionally, or with reckless disregard for the truth” and that “with the recklessly omitted information added to the affidavit, the reformed affidavit fails to establish probable cause.” Gifford, 727 F.3d at 98 (internal quotation marks omitted); see also Franks, 438 U.S. at 156, 98 S.Ct. 2674; Rigaud, 684 F.3d at 173. Should the defendant establish by proof that these standards have been met, the warrant is voided and the fruits of the search are excluded. Gifford, 727 F.3d at 98; see also Franks, 438 U.S. at 156, 98 S.Ct. 2674; Rigaud, 684 F.3d at 173. As to the second prong, a warrant is based on probable cause when “‘the affidavit upon which a warrant is founded demonstrates in some trustworthy fashion the likelihood that an offense has been committed and that there is sound reason to believe that a particular search will turn up evidence of it.’ ” United States v. Chiaradio, 684 F.3d 265, 279 (1st Cir.2012) (quoting United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.1988)). It is not necessary, however, for that “ ‘belief [to] be correct or more likely true than false.’ ” United States v. Feliz, 182 F.3d 82, 86 (1st Cir.1999) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion)); see also United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir.1997) (“[P]robable cause need not be tantamount to proof beyond a reasonable doubt.... Probability is the touchstone.” (alteration in original) (internal quotation marks omitted)). Instead, we “examine [an] affidavit in a practical, commonsense fashion.” United States v. Woodbury, 511 F.3d 93, 98 (1st Cir.2007) (alteration in original) (quoting Feliz, 182 F.3d at 86). 3. The Omitted Information Was Immaterial McLellan argues that Agent Locke intentionally and recklessly omitted material information regarding the FBI’s investigation into a35scott prior to the December 1 Download from his affidavit, and had this information been included in the affidavit, probable cause would have been lacking. Specifically, McLellan points to: (1) the February 2008 Canadian tip into babylick; (2) the March 2009 report detailing a35scott’s involvement in the" }, { "docid": "22189689", "title": "", "text": "To be entitled to a Franks 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 if the allegedly false statement is necessary to a finding of probable cause.” 438 U.S. at 155-56, 98 S.Ct. at 2676. ‘When assessing whether the alleged false statements and omissions were material, the trial court is to disregard those portions of the affidavit which the defendant has shown are arguably false and misleading.” Kapordelis, 569 F.3d at 1309 (citing Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684). “[E]ven intentional or reckless omissions will invalidate a warrant only if inclusion of the omitted facts would have prevented a finding of probable cause.” Id. (quoting Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.1997) (alteration in original)). “The defendant bears the burden of showing that, ‘absent those misrepresentations or omissions, probable cause would have been lacking.’ ” Id. (quoting Novaton, 271 F.3d at 987). For several reasons, we conclude that Sarras did not make the requisite “substantial preliminary showing” to warrant a Franks hearing. First, we agree with the magistrate judge and the district court that Sarras’s “omissions” are selective characterizations and exaggerations of what E.M. said that did nothing to strike at the core of the probable cause finding. Rather, the relevant statements by E.M. were that Sarras had sex with her and took pictures of her. Sarras complains that the affidavit did not state that, according to the victim, Sarras took pictures on only one occasion. Whether it was one time or ten times, such conduct is criminal. And the omission of the fact that E.M. could only estimate the dates on which the abuse occurred also does not affect the finding of probable cause. Second, we recognize that Ortiz’s affidavit did not specify that E.M. and her mother had used the camera before, that E.M. did not know where in the house the camera was, and that E.M. was unsure but only thought the camera was in Sarras’s house." }, { "docid": "22189688", "title": "", "text": "the abuse to the police on May 7. He repeatedly questioned witnesses about the interconnectivity between his and E.M.’s and her mother’s computers, his parental restrictions on E.M., and his financial dealings with E.M.’s mother. And the laptop photos showed the location of the abuse by depicting the furniture in them. Sarras developed his “I’ve been framed” theme extensively in both his opening and closing statements. We have no doubt that this isolated statement by Officer Ortiz — about a victim’s memory of dates and times— had no impact on the outcome of the trial. H. Denial of a Franks Hearing Sarras contends that the district court abused its discretion by denying his motion to suppress evidence without first conducting a Franks hearing. Sarras argues that Officer Ortiz made material omissions and falsehoods in her search warrant affidavit and that this entitled him to a Franks hearing. “Affidavits supporting arrest warrants are presumptively valid.” See United States v. Kapordelis, 569 F.3d 1291, 1309 (11th Cir.2009) (citing Franks, 438 U.S. at 171, 98 S.Ct. at 2684). To be entitled to a Franks 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 if the allegedly false statement is necessary to a finding of probable cause.” 438 U.S. at 155-56, 98 S.Ct. at 2676. ‘When assessing whether the alleged false statements and omissions were material, the trial court is to disregard those portions of the affidavit which the defendant has shown are arguably false and misleading.” Kapordelis, 569 F.3d at 1309 (citing Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684). “[E]ven intentional or reckless omissions will invalidate a warrant only if inclusion of the omitted facts would have prevented a finding of probable cause.” Id. (quoting Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.1997) (alteration in original)). “The defendant bears the burden of showing that, ‘absent those misrepresentations or omissions, probable cause would have been lacking.’ ” Id. (quoting Novaton, 271 F.3d at 987). For several reasons," } ]

[ { "docid": "3558788", "title": "", "text": "limitations for federal causes of action not supplied with their own limitations period will be borrowed from state law” and applying that rule to claim brought pursuant to the Labor-Management Reporting and Disclosure Act of 1959); Wilson v. Garcia, 471 U.S. 261, 266-67, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (applying analogous state statute of limitations to 42 U.S.C. § 1983 claim), courts have not treated Lanham Act cases in the same manner. Instead, the “Lanham Act does not contain a statute of limitations. In determining when a plaintiffs suit should be barred under the Act, courts have consistently used principles of laches as developed by courts of equity.” Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365 (6th Cir.1985). Unlike statutes of limitations, “laches is not ... a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced.” Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 90 L.Ed. 743 (1946). Laches, rather than a state statute of limitations, governs claims brought to enforce an “equitable right created by Congress.” Id. at 395, 66 S.Ct. 582. Catalanotte notes that there is a “presumption of laches” that holds that “an action is barred if not brought within the period of the [analogous state] statute of limitations and is alive if brought within the period.” Tandy Corp., 769 F.2d at 365. The analogous state statute of limitations in this case is three years. Herman Miller, Inc. v. Palazzetti Imports & Exports, Inc., 270 F.3d 298, 321 (6th Cir.2001). But Catalanotte otherwise fails to address the elements of laches, which are of crucial importance in this case. To invoke the equitable doctrine of laches, a party must show: “(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting it.” Id. at 320. With respect to the first requirement, a party’s notice or lack of notice that its rights are being infringed is particularly relevant to determining whether that party lacked diligence in protecting its rights. See id. at 321. In" } ]

[ { "docid": "6005105", "title": "", "text": "F.2d 1155, 1164 (6th Cir.1980). 2. Analysis The district court granted Palazzetti summary judgment as to laches with respect to all of Herman Miller’s claims. This finding barred Herman Miller from obtaining pre-suit monetary damages related to these claims. Herman Miller only appeals the district court’s finding of lach-es as to its trade dress claims. Laches is the “negligent and unintentional failure to protect one’s rights.” Elvisly Yours, 936 F.2d at 894. A party asserting laches must show: (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting it. See In duct-O-Matic Corp. v. Inductotherm Corp., 747 F.2d 358, 367 (6th Cir.1984). There is a strong presumption that a plaintiffs delay in bring suit for monetary relief is not unreasonable as long as the analogous statute of limitations has not lapsed. See Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365-66 (6th Cir.1985). “Only rarely should laches bar a case before the analogous statute has run.” Id. at 366. The statute of limitations in a trademark case is that for injury to personal property. See Sprinklets Water Center, Inc. v. McKesson Corp., 806 F.Supp. 656, 663 (E.D.Mich.1992). Under Michigan law, the period is three years. See ibid. The district court concluded that Herman Miller waited four years to enforce its trade dress rights in the Eames lounge chair and ottoman since it was on notice that Palazzetti was reproducing Eames-designed furniture in 1990 and did not file suit until 1994. Herman Miller claims that the district court erred in two respects: first, by finding that the analogous statute of limitations had run, and second, by ultimately finding in favor of Palazzetti as to laches. The district court did not err. Herman Miller is unable to demonstrate either that the analogous statute of limitations had not run or that there is a genuine issue of material fact as to (1) whether it was diligent in asserting its rights against Palazzetti or (2) whether Palazzetti was prejudiced. The statute of limitations issue and the first part of the laches inquiry" }, { "docid": "22880604", "title": "", "text": "737 (1893); Gillons v. Shell Co., 86 F.2d 600, 606- (9th Cir.1936); see also Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1554 (Fed.Cir.1996) (citing Leg-gett ), and, to the extent it does have force, cf. Powell v. Zuckert, 366 F.2d 634, 636-38 & nn.2-4 (D.C.Cir.1966) (discussing the relationship between poverty and laches) is supported, by no evidence here. In short, McClory has offered no viable justification for the delay; thus, this element of laches is also satisfied. D. Prejudice Unreasonable delay, however, is not enough: “In addition, laches requires prejudice.” Couveau, 218 F.3d at 1084. Courts have recognized various sorts of prejudice for purposes of laches. The reason for this is clear and, in some sense, definitional: The very purpose of laches as an equitable doctrine — and the reason that it differs from a statute of limitations — is that the claim is barred because the plaintiffs delay occasioned the defendant’s prejudice. Telink, 24 F.3d at 45 (“Unlike a limitations period, which bars an action strictly by time lapse, laches bars a claim if unreasonable delay causes prejudice to the defendant. International Tel. & Tel. Corp. v. General Tel. & Elecs. Corp., 518 F.2d 913, 926 (9th Cir.1975). ‘[Ljaches is not like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or parties.’ Holmberg v. Armbrecht, 327 U.S. [392,] 396, 66 S.Ct. 582, 90 L.Ed. 743 [ (1946) ].” (footnote omitted)). Courts have recognized two chief forms of prejudice in the laches context— evidentiary and expectations-based. Evidentiary prejudice includes such things as lost, stale, or degraded evidence, or witnesses whose memories have faded or who have died. Jackson, 25 F.3d at 889-90; TVs. for Alaska Laborers-Constr. Indus. Health & Sec. Fund v. Ferrell, 812 F.2d 512, 518 (9th Cir.1987); Lotus, 831 F.Supp. at 220. A defendant may also demonstrate prejudice by showing that it took actions or suffered consequences that it would not have, had the plaintiff brought suit promptly. Jackson," }, { "docid": "12304426", "title": "", "text": "1946 Akers was just 51 hours short of achieving the threshold 400 hours, a goal he, in all reasonable probability, would have attained and surpassed with ease. In view of the facts of the case, this court finds that Akers could have reasonably expected that his opportunity to work 400 hours and more would be indefinite and continuous. Consequently, Akers was a nontemporary employee under the Act and, in accordance with its provisions and the Supreme Court cases interpreting them, this court holds that the clock on plaintiff’s pension began running in 1946; he became eligible to begin collecting it thirty years later in 1976. II. The parties are in agreement that the doctrine of laches is applicable to a veteran’s reemployment rights case. Lingenfelter v. Keystone Consolidated Industries, Inc., 691 F.2d 339, 340 (7th Cir.1982); Alber v. Norfolk & Western Railway Co., 654 F.2d 1271, 1278 (8th Cir.1981). There is also agreement that plaintiff’s cause of action accrued in 1976 when his initial application for a pension was denied by the trustees. See Davis v. Alabama Power Co., 383 F.Supp. 880, 893 (N.D.Ala.1974) aff'd per curiam, 542 F.2d 650 (5th Cir.1976), cert. denied, 429 U.S. 1037, 97 S.Ct. 731, 50 L.Ed.2d 748 (1977). Therefore, defendants argue, Aker’s complaint, is barred by the doctrine of laches since it was not filed until six years after the accrual of his right of action. Laches is an equitable doctrine and “principally a question of the [equity or] inequity of permitting the claim to be enforced.” Bush v. Oceans International, 621 F.2d 207 (5th Cir.1980) (quoting Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946)). An action will not be barred by laches unless the court finds there has been inexcusable delay by the plaintiff in instituting suit and prejudice to the defendant as a result of the delay. As was recently stated by the seventh circuit: In order to support a defense of laches, there must be a showing of both a lack of diligence by the party against whom the defense is asserted and prejudice" }, { "docid": "10631533", "title": "", "text": "Because turnover claims are equitable in nature, see Walker v. Weese, 286 B.R. 294, 299 (D.Md.2002) (turnover claim “fairly characterized as an equitable claim”); In re Warmus, 252 B.R. 584, 587 (Bankr.S.D.Fla.2000) (turnover claims, “firmly rooted in protecting and preserving property of the [estate], ... are clearly and uniquely equitable claims under the Bankruptcy Code”) (citations omitted); In re Kabler, 230 B.R. 525, 526 (Bankr.E.D.N.C.1999) (“Turnover is an equitable remedy”), they are subject to lach-es. Algrant v. Evergreen Valley Nurseries Ltd. Partnership, 126 F.3d 178, 186 n. 3 (3d Cir.1997) (“An action brought in equity is governed by the doctrine of lach-es.”) (citing Russell v. Todd, 309 U.S. 280, 287, 60 S.Ct. 527, 84 L.Ed. 754 (1940)). See also Erkins v. Bryan, 785 F.2d 1538, 1543 (11th Cir.1986) (“Policies underlying the creation of federal equitable claims are not well served by applying rigid limitations; therefore, federal courts considering federal equitable claims should rely on equitable principles”) (citing Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946)). “The party asserting laches as a defensive bar must establish (1) an inexcusable delay in bringing the action and (2) prejudice.” United States Fire Ins. Co. v. Asbestospray, Inc., 182 F.3d 201, 208 (3d Cir.1999) (citations omitted). “To establish prejudice, the party raising laches must demonstrate that the delay caused a disadvantage in asserting and establishing a claimed right or defense; the mere loss of what one would have otherwise kept does not establish prejudice.” Id. (citation omitted). While statutes of limitations do not directly apply to equitable claims such as the turnover claim, a limitations period on an analogous claim for legal relief is highly relevant to a laches analysis. As we said in E.E.O.C. v. Great Atlantic & Pacific Tea Co., 735 F.2d 69 (3d Cir.1984), “[i]f a statutory limitations period that would bar legal relief has expired, then the defendant in an action for equitable relief enjoys the benefit of a presumption of inexcusable delay and prejudice. In that case, the burden shifts to the plaintiff to justify its delay and negate prejudice.” 735 F.2d at" }, { "docid": "16537572", "title": "", "text": "on the part of the government employee under section 3551 as it did in section 2022, it is nonetheless true that if there is such a cause of action, the borrowing of any state limitation period would be inconsistent with the underlying policies expressed by Congress with respect to the rights of veterans to reemployment generally. We discern no Congressional notion to impose upon federal employees the restrictions of varying state laws when it has so clearly rejected that concept with respect to those to whom it would more logically be expected to have been willing to apply it. We therefore conclude section 2022 is most nearly analogous to the statute at issue and that no state or federal statute of limitations applies to implied causes of action arising under 5 U.S.C. § 3551. Instead, Stevens’ claim for relief, whether it normally would be equitable or legal, is governed by the traditional equitable doctrine of laches: “In its traditional equitable form, laches comprises two elements: inexcusable delay by the plaintiff in bringing suit and prejudice to the defendant resulting from that delay.” Note, Limitation Borrowing in Federal Courts, 77 Mich.L. Rev. 1127, 1141 (1979). As Justice Frankfurter wrote in Holmberg v. Armbrecht, supra, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743: Equity eschews mechanical rules; it depends on flexibility. Equity has acted on the principle that “laches is not like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or the parties.” IV. In applying laches many courts, our own included, have held that laches is rebuttably presumed if suit is commenced after the time period specified in the most nearly analogous state or federal statute of limitations, thus shifting the burden to the plaintiff of proving excusable delay and the absence of prejudice to the defendant by the passage of time. See, e.g., TWM Mfg. Co. v. Dura Corp., 592 F.2d 346, 348 (6th Cir.1979); Greathouse v. Babcock & Wilcox" }, { "docid": "23673203", "title": "", "text": "Anheuser-Busch v. Du Bois Brewing Co., 175 F.2d 370, 373-74 (3d Cir. 1949), cert. denied, 339 U.S. 934, 70 S.Ct. 664, 94 L.Ed. 1354 (1950); Artus Corp. v. Nordic Co., 512 F.Supp. 1184, 1187 (W.D. Pa.1981); Consolidated Home Specialties v. Plotkin, 358 Pa. 14, 30, 55 A.2d 404, 412 (1947). Although there is some degree of confusion on this point in the older cases, it is also clear that actual “laches” in effect works an equitable estoppel barring all relief and requires a showing of both delay and prejudice. Jenn-Air Corp. v. Penn Ventilator Co., 464 F.2d 48, 49-50 (3d Cir. 1972), quoting Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); Sobosle v. United States Steel Corp., 359 F.2d at 12. In the trademark context, the concepts of “mere delay” or “laches without more,” although confusing as a matter of semantics, see Alfred Dunhill of London v. Kasser Dist. Prod. Corp., 350 F.Supp. 1341, 1364-65 (E.D.Pa.1972), aff’d mem., 480 F.2d 917 (3d Cir. 1973), are nonetheless relevant in two ways. First, there is that narrow class of cases where the plaintiff’s delay has been so outrageous, unreasonable and inexcusable as to constitute a virtual abandonment of its right. In Anheuser-Busch v. Du Bois Brewing Co., for example, we postulated that, “for example, had there been a lapse of a hundred years or more, we think it highly dubious that any court of equity would grant injunctive relief against even a fraudulent infringer.” 175 F.2d at 374. Second, there is the much more common situation in which the plaintiff’s less egregious delay will bar its claim for an accounting for past infringement but not for prospective injunctive relief. Id. at 373-74 (citing cases); Alfred Dunhill of London v. Kasser Dist. Prod. Corp., 350 F.Supp. at 1364; 4 R. Callman, Unfair Com petition § 87.3(b), at 126 (3d ed. 1970). The distinction between these classes of cases and between mere delay and the laches which give rise to affirmative rights in the defendant as a result of detrimental reliance, has been consistently recognized by the" }, { "docid": "8529644", "title": "", "text": "a controlling statute of limitations. Young v. Bradley, 142 F.2d 658, 662 (6th Cir.1944); Patterson v. Hewitt, 195 U.S. 309, 25 S.Ct. 35, 49 L.Ed. 214 (1904). In the Sixth Circuit, there is a strong presumption that laches will not apply when the analogous statute has not run, absent compelling reasons. Patton v. Bearden, 8 F.3d 343, 348 (6th Cir.1993); Elvis Presley Enterprises v. Elvisly Yours Inc., 936 F.2d 889, 894 (6th Cir.1991); Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365-66 (6th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986). However, laches may apply irrespective of the statute of limitations. Young, 142 F.2d at 662. Indeed, other Circuits have applied laches in cases governed by a statute of limitations. See e.g. Maksym v. Loesch, 937 F.2d 1237, 1248 (7th Cir.1991); K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st Cir.1989); Azalea Fleet, Inc. v. Dreyfus Supply & Machinery Corp., 782 F.2d 1455, 1459 (8th Cir.1986). Due to the lack of recognizable uniform application of the general six-year statute of limitations to equitable actions challenging a deficient administrative forfeiture procedure, and the compelling facts of this case, the Court finds the application of the laches analysis to be appropriate in this case. B. The Latches Standard According to Blacks Law Dictionary (5th Ed.), the “doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights.” See also Kansas v. Colorado, 514 U.S. 675, -, 115 S.Ct. 1733, 1742, 131 L.Ed.2d 759 (1995). “The doctrine of laches is designed to promote diligence and prevent enforcement of a stale claim.” Jabbar-El v. Sullivan, 811 F.Supp. 265, 271 (E.D.Mich.1992) (citing Waddell v. Small Tube Products, Inc., 799 F.2d 69, 74 (3rd Cir.1986)). Dismissal of a claim on the grounds of laches requires that there be (1) unreasonable and unexeused delay in bringing the claim, and (2) material prejudice to the defendant as a result of the delay. A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1028 (Fed.Cir.1992) (en banc). To establish" }, { "docid": "1117012", "title": "", "text": "cut short an express statute of limitations. This rule provides the court with the necessary flexibility which is at the root of equitable relief. With its origins in equity, the doctrine of laches is not made upon the application of “mechanical rules.” Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946). The present claim, brought by a debtor-in-possession, is to be distinguished from a claim brought by an appointed trustee. Courts addressing whether the defense of laches applies to trustees pursuing avoidance actions have uniformly held the doctrine inapplicable. For example, in Royal Air Properties, Inc. v. Smith, 312 F.2d 210, 214 (9th Cir.1962), the court stated: “Where Congress has provided a specific and relatively short statute of limitations, it can be inferred that the federally created limitation is not to be cut short.” Id. (emphasis added). See also Matter of Silver Mill Frozen Foods, Inc., 23 B.R. 179, 181 (Bankr.Mich.1982); In re Petty, 93 B.R. 208 (9th Cir.BAP Or.1988). Unlike cases involving appointed trustees which are governed by a two-year statute of limitations, cases involving debtors-in-possession have a potentially more lengthy and nebulous deadline — anytime before the case closes or is dismissed. Thus a court is correct to consider the equitable defense of laches in cases governed by the statute of limitations contained in § 546(a)(2). As the bankruptcy court correctly stated, laches is an affirmative defense and the defendant bears the ultimate burden of proving (1) lack of diligence (unreasonable delay) by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense. White v. Daniel, 909 F.2d 99, 102 (4th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991). The role of the court in considering the equitable defense of laches is to balance the plaintiffs delay in bringing his claim and the resulting prejudice to a defendant, against plaintiffs excuse for such delay. When weighing the equities, the court must strongly consider the fact that plaintiff has brought his claim within the express statute of limitations. Giddens v. Isbrandtsen Co.," }, { "docid": "6005104", "title": "", "text": "by the Eameses. In order to overturn an injunction for an abuse of discretion we must be left with “a definite and firm conviction that the trial court committed a clear error of judgment.” Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1276 (6th Cir.1998) (citation and internal quotations omitted). We are not left with such a conviction in this case. Therefore, we uphold the scope of the district court’s injunction. C. Summary Judgment to Palazzetti on Laches as to Herman Miller’s Trade Dress Claims 1. Standard of Review This court reviews a district court’s grant of summary judgment de novo, using the same standard employed by the district court. See Daddy’s Junky, 109 F.3d at 280. When the record before the district court on a motion for summary judgment shows factual issues in dispute that could affect the equity of the application of laches to bar the claim, the district court must deny the motion and permit the parties to present their proof. See Watkins v. Northwestern Ohio Tractor Pullers Ass’n, Inc., 630 F.2d 1155, 1164 (6th Cir.1980). 2. Analysis The district court granted Palazzetti summary judgment as to laches with respect to all of Herman Miller’s claims. This finding barred Herman Miller from obtaining pre-suit monetary damages related to these claims. Herman Miller only appeals the district court’s finding of lach-es as to its trade dress claims. Laches is the “negligent and unintentional failure to protect one’s rights.” Elvisly Yours, 936 F.2d at 894. A party asserting laches must show: (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting it. See In duct-O-Matic Corp. v. Inductotherm Corp., 747 F.2d 358, 367 (6th Cir.1984). There is a strong presumption that a plaintiffs delay in bring suit for monetary relief is not unreasonable as long as the analogous statute of limitations has not lapsed. See Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365-66 (6th Cir.1985). “Only rarely should laches bar a case before the analogous statute has run.” Id. at 366. The statute of limitations" }, { "docid": "691134", "title": "", "text": "the benefit of participating employees, arguing that its duties were purely contractual. May also contends that Corley’s pre-ERISA (i.e., prior to January 1, 1975) common law claim is time-barred. Under the District of Columbia statute of limitations, which governs this claim, a contract action or an action for which no specific limitation is provided must be brought within three years of the time it accrues. D.C. Code § 12-301(7), (8). The right to maintain an action “accrues” when all the elements of the cause of action exist, Freedman & Sons, Inc. v. Hartford Insurance Company, 396 A.2d 195, 198 (D.C.App. 1978), which in this case was at the time May deposited any refund into its general funds. Since plaintiff’s complaint for redress of these pre-1975 acts was filed with the Court in September 1979, the defendants argue that the claim is barred by the statute. Plaintiff responds that, since she is asserting an equitable right to redress the breach of a fiduciary duty rather than a contract claim, the question of a time bar is governed by the doctrine of laches. Corley’s common law claim should be time-barred even if it is equitable in nature. While statutes of limitations do not control actions for equitable relief, Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946), the applicable statute is a guide in determining whether laches should permit a long-delayed claim to be enforced, Saffron v. Department of the Navy, 183 U.S.App.D.C. 45, 561 F.2d 938 (D.C.Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978). Where plaintiff has not pursued her claim with diligence and the delay has prejudiced the defendant, laches will bar the action. Corley has made no showing of due diligence in pursuing this action. And although she contends that May’s practice of retaining the dividends for itself was fraudulently concealed from participating employees, May’s annual reports to the Department of Labor on the Plan disclose its receipt of dividends. This information, coupled with plaintiff’s knowledge that no benefits were directed to employees when these dividends were received," }, { "docid": "23067190", "title": "", "text": "(1st Cir. 1958); Brundage v. United States, 504 F.2d 1382, 1386 (Ct.C1.1974), cert. denied, 421 U.S. 998, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975), or treated them as merely one element in the congeries of factors to be considered in determining whether the length of delay was unreasonable and whether the potential for prejudice was great, e. g., Brown v. County of Buena Vista, 95 U.S. 157, 160, 24 L.Ed. 422 (1877); Rozas v. Cameron Iron Works, Inc., 83 CCH Lab. Cas. ¶ 10,407 at 17,625 (S.D.Tex.1977); Deski v. National Cash Register Co., 78 CCH Lab. Cas. ¶ 11,198 at 20,100-01 (S.D. Ohio 1975); Hirschberg v. Braniff Airways, Inc., 404 F.Supp. 869, 874 (E.D.N.Y.1975); accord, Hill v. W. Bruns & Co., 498 F.2d 565, 569 (2d Cir. 1974). We find that the last approach accords most favorably with the purpose of the doctrine of laches and congressional intent regarding the doctrine’s application to claims pursuant to 38 U.S.C. § 2021 et seq., to protect veterans’ reemployment rights. In Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946) the Supreme Court stated: Traditionally and for good reasons, statutes of limitation are not controlling measures of equitable relief. Such statutes have been drawn upon by equity solely for the light they may shed in determining that which is decisive for the chancellor’s intervention, namely, whether the plaintiff has inexcusably slept on his rights so as to make a decree against the defendant unfair. * * * Equity eschews mechanical rules; it depends on flexibility. Equity has acted on the principle that “laches is not like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced, — an inequity founded upon some change in the condition or relations of the property or the parties.” Galliher v. Cadwell, 145 U.S. 368, 373 [, 12 S.Ct. 873, 875, 36 L.Ed. 738]; see Southern Pacific Co. v. Bogert, 250 U.S. 483, 488-89 [, 39 S.Ct. 533, 535, 63 L.Ed. 1099]. The doctrine of laches is premised upon the same principles" }, { "docid": "23044721", "title": "", "text": "that reasonably can be defined as “adversarial.” Therefore, the significant expansion hearings bear the hallmarks of inquisitorial proceedings in that the Board dominates the fact-finding process and the agency is not present during the proceedings. Consequently, the Board’s significant expansion hearings are not adversari al and do not warrant a judicially-imposed issue exhaustion requirement. Accordingly, the district court erred in determining that the Coalition waived judicial review of the unauthorized significant expansion and the retroactive authorization claims. 3. Laches The defendants nevertheless assert that the equitable doctrine of laches precludes judicial review of the Coalition’s significant expansion claims. “Laches is the ‘negligent and unintentional failure to protect one’s rights.’ ” Nartron Corp. v. STMicroelectronics, 305 F.3d 397, 408 (6th Cir.2002) (quoting Elvis Presley Enter., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 894 (6th Cir.1991)). “Laches consists of two elements: (1) unreasonable delay in asserting one’s rights; and (2) a resulting prejudice to the defending party.” Brown-Graves Co. v. Central States, Southeast & Southwest Areas Pension Fund, 206 F.3d 680, 684 (6th Cir.2000). With respect to the first element, there is a strong presumption that a plaintiffs delay in bringing suit is reasonable as long as the analogous statute of limitations has not lapsed. See Herman Miller, Inc. v. Palazzetti Imp. & Ex., Inc., 270 F.3d 298, 321 (6th Cir.2001) (citing Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365-66 (6th Cir.1985)). “Only rarely should laches bar a case before the analogous statute has run.” Tandy Corp., 769 F.2d at 366. It is undisputed that the six-year statute of limitations for bringing civil actions against the United States governs this action. See 28 U.S.C. § 2401(a) (“Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”). It is further undisputed that the statute of limitations commenced upon the Board’s issuance of the 1996 significant expansion decisions. Accordingly, the earliest date upon which the limitations period expired was February 6, 2002 — six years following the issuance of the Board’s system furniture significant" }, { "docid": "12304427", "title": "", "text": "v. Alabama Power Co., 383 F.Supp. 880, 893 (N.D.Ala.1974) aff'd per curiam, 542 F.2d 650 (5th Cir.1976), cert. denied, 429 U.S. 1037, 97 S.Ct. 731, 50 L.Ed.2d 748 (1977). Therefore, defendants argue, Aker’s complaint, is barred by the doctrine of laches since it was not filed until six years after the accrual of his right of action. Laches is an equitable doctrine and “principally a question of the [equity or] inequity of permitting the claim to be enforced.” Bush v. Oceans International, 621 F.2d 207 (5th Cir.1980) (quoting Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946)). An action will not be barred by laches unless the court finds there has been inexcusable delay by the plaintiff in instituting suit and prejudice to the defendant as a result of the delay. As was recently stated by the seventh circuit: In order to support a defense of laches, there must be a showing of both a lack of diligence by the party against whom the defense is asserted and prejudice to the defending party, (citation omitted.) Lingenfelter v. Keystone Consolidated Industries, Inc., 691 F.2d at 340. While the plaintiff bears the burden of justifying any delay, if this delay is found by the court to be inexcusable, the burden then shifts to the defendant to demonstrate prejudice. Id. In this case, even assuming arguendo that Akers was unexcusably dilatory in bringing his claim, the trustees have failed to show that the six-year delay was detrimental to their defense in any significant way. They contend that the passage of the six years since 1976 has critically affected their ability to present evidence about the employment opportunities at the Port of Houston in 1946. Specifically, defendants state that the records of the number of longshoreman available for work out of Local 1273, their seniority and the works that would have been available to them in the months of October, November, and December, 1946, not to mention the number of longshoremen returning from service and other factors aré simply no longer available. While such a determination would have" }, { "docid": "23044720", "title": "", "text": "record as we know it, or is new information that we are hearing for the first time, then what we will do following this hearing is to ask [UNICOR] to provide us more information or go outside [UNICOR] to gather information ourselves. (J.A., 577.) Furthermore, the Board has the exclusive authority to solicit information and question the “commenters.” In the words of the Board’s chairman during the Office Case Goods hearing, “[This] is not a process that is a give-and-take where you ask questions of the board and we’re in a position to respond. What we basically do here is listen to your presentation and then consider that material, plus all the material that is on the record, and make a decision.” (J.A., 803.) The broad discretion vested in the Board is of particular import in that UNICOR does not present any proposal to the Board during the hearings. The significant expansion hearings are limited to presentations made by “commenters,” not including the agency, and there lacks any cross-examination, counter-arguments, or any type of discussion that reasonably can be defined as “adversarial.” Therefore, the significant expansion hearings bear the hallmarks of inquisitorial proceedings in that the Board dominates the fact-finding process and the agency is not present during the proceedings. Consequently, the Board’s significant expansion hearings are not adversari al and do not warrant a judicially-imposed issue exhaustion requirement. Accordingly, the district court erred in determining that the Coalition waived judicial review of the unauthorized significant expansion and the retroactive authorization claims. 3. Laches The defendants nevertheless assert that the equitable doctrine of laches precludes judicial review of the Coalition’s significant expansion claims. “Laches is the ‘negligent and unintentional failure to protect one’s rights.’ ” Nartron Corp. v. STMicroelectronics, 305 F.3d 397, 408 (6th Cir.2002) (quoting Elvis Presley Enter., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 894 (6th Cir.1991)). “Laches consists of two elements: (1) unreasonable delay in asserting one’s rights; and (2) a resulting prejudice to the defending party.” Brown-Graves Co. v. Central States, Southeast & Southwest Areas Pension Fund, 206 F.3d 680, 684 (6th Cir.2000). With respect" }, { "docid": "1117015", "title": "", "text": "inference of prejudice upon showing that plaintiffs action was not filed within an analogous statute of limitations, Giddens, supra, a plaintiff should be entitled to an inference of reasonableness when his claim is filed within the limitations period. This result is grounded in common sense and the policy behind equitable relief. It is axiomatic that a claimant who has filed his action within the statute of limitations provided by Congress is entitled to a presumption that laches will not apply. Cf., Elvis Presley Enterprises, Inc. v. Elvisly Yours, Inc., 936 F.2d 889 (6th Cir.1991) (strong presumption that plaintiff’s delay is reasonable so long as analogous statute of limitations has not elapsed); Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365 (6th Cir.1985) (in trademark case, a presumption of laches if claim brought outside analogous statute of limitations; presumption that case is alive if brought within the limitations period), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986). As a result, the defendant’s burden in proving unreasonable delay and prejudice is heavier. Only “upon special intervening facts demanding [ ] exceptional relief” should laches bar a claim otherwise brought within an applicable statute of limitations. Phipps v. Robinson, 858 F.2d 965, 972 (4th Cir.1988) (applying North Carolina law and quoting Creech v. Creech, 222 N.C. 656, 24 S.E.2d 642, 647 (1943)). 2. Because the bankruptcy court determined that the claim in issue was barred by the statute of limitations, it did not have occasion to conduct a factual analysis before concluding that laches also applied to bar plaintiffs’ claim. The record does not show development of a sufficient evidentia-ry basis to support a conclusion that the defendant suffered actual prejudice (and, if so, its cause and severity) and whether there were exceptional circumstances justifying application of laches in spite of compliance with an existing statute of limitations. Furthermore, even assuming that defendants have met their burden of proving prejudice and exceptional circumstances constituting unreasonable delay, the record does not supply a sufficient factual basis regarding plaintiffs’ excuse, if any, for delay. In order that the evidentiary" }, { "docid": "2077288", "title": "", "text": "A. Laches, Acquiescence and Progressive Encroachment In its motion for summary judgment, Exxon asserted the affirmative defenses of laches and acquiescence. Although laches precludes a plaintiff from recovering damages, it does not bar injunctive relief. See TWM Mfg. Co., Inc. v. Dura Corp., 592 F.2d 346, 349-50 (6th Cir.1979) (“Laches alone does not foreclose a plaintiffs right in an infringement action to an injunction and damages after the filing of the suit. Only by proving the elements of estoppel may a defendant defeat such prospective relief.”); Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 366 n. 2 (6th Cir.1985) (same). Be cause Kellogg withdrew its claim for actual and punitive damages, seeking injunctive relief only, the district court properly determined that laches was inapplicable and that Exxon must prove acquiescence. Acquiescence, like laches, requires a “finding of conduct on the plaintiffs part that amounted to an assurance to the defendant, express or implied, that plaintiff would not assert his trademark rights against the defendant.” Elvis Presley Enter., Inc., v. Elvisly Yours, Inc., 936 F.2d 889, 894 (6th Cir.1991) (quoting Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039, 1046 (4th Cir. 1984)). Although both laches and acquiescence require proof that the party seeking to enforce its trademark rights has unreasonably delayed pursuing litigation and, as a result, materially prejudiced the alleged infringer, acquiescence requires more. See Elvis, 936 F.2d at 894 (holding that with acquiescence, “more is necessary than the ordinary requirement of showing unreasonable delay and prejudice to the defendant”); Tandy, 769 F.2d at 366 n. 2 (“To deny injunctive relief in trademark litigation, ... some affirmative conduct in the nature of an estoppel, or conduct amounting to Virtual abandonment,’ is necessary.”) (internal citations omitted); Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 462 (4th Cir.1996) (“Although the doctrines of acquiescence and laches, in the context of trademark law, both connote consent by the owner to an infringing use of his mark, acquiescence implies active consent, while laches implies a merely passive consent.”); SCI Sys., Inc. v. Solidstate Controls, Inc., 748 F.Supp. 1257, 1262 (S.D.Ohio" }, { "docid": "1117014", "title": "", "text": "355 F.2d 125 (4th Cir.1966) provides the framework for weighing the equities when the defense of laches is raised. Giddens involved a longshoreman's action for personal injury in which there was no express statute of limitations; thus, the court looked to an analogous statute for an appropriate limitations period. Although a maritime case, Giddens reinforces that a defendant has the ultimate burden of proving both (1) inexcusable delay, and (2) prejudice to defendant. Id. at 128. Of this burden, the court stated: Initially this obligation is ordinarily satisfied by the defendant’s noting that the action was not commenced within the statutory time parallel of laches, or by facts otherwise revealing a lack of vigilance. The second element — prejudice— must also be demonstrated by the defendant, but in this he is aided by the inference of prejudice warranted by the plaintiff’s delay. The plaintiff is then to be heard to excuse his apparent laggardness and to prove facts manifesting an absence of actual prejudice. Id. (emphasis added). Just as a defendant is entitled to an inference of prejudice upon showing that plaintiffs action was not filed within an analogous statute of limitations, Giddens, supra, a plaintiff should be entitled to an inference of reasonableness when his claim is filed within the limitations period. This result is grounded in common sense and the policy behind equitable relief. It is axiomatic that a claimant who has filed his action within the statute of limitations provided by Congress is entitled to a presumption that laches will not apply. Cf., Elvis Presley Enterprises, Inc. v. Elvisly Yours, Inc., 936 F.2d 889 (6th Cir.1991) (strong presumption that plaintiff’s delay is reasonable so long as analogous statute of limitations has not elapsed); Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365 (6th Cir.1985) (in trademark case, a presumption of laches if claim brought outside analogous statute of limitations; presumption that case is alive if brought within the limitations period), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986). As a result, the defendant’s burden in proving unreasonable delay and prejudice is" }, { "docid": "2077289", "title": "", "text": "F.2d 889, 894 (6th Cir.1991) (quoting Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039, 1046 (4th Cir. 1984)). Although both laches and acquiescence require proof that the party seeking to enforce its trademark rights has unreasonably delayed pursuing litigation and, as a result, materially prejudiced the alleged infringer, acquiescence requires more. See Elvis, 936 F.2d at 894 (holding that with acquiescence, “more is necessary than the ordinary requirement of showing unreasonable delay and prejudice to the defendant”); Tandy, 769 F.2d at 366 n. 2 (“To deny injunctive relief in trademark litigation, ... some affirmative conduct in the nature of an estoppel, or conduct amounting to Virtual abandonment,’ is necessary.”) (internal citations omitted); Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 462 (4th Cir.1996) (“Although the doctrines of acquiescence and laches, in the context of trademark law, both connote consent by the owner to an infringing use of his mark, acquiescence implies active consent, while laches implies a merely passive consent.”); SCI Sys., Inc. v. Solidstate Controls, Inc., 748 F.Supp. 1257, 1262 (S.D.Ohio 1990) (same). In University of Pittsburgh v. Champion Prod., Inc., 686 F.2d 1040, 1044-45 (3d Cir.1982), a decision relied upon by this Court in Tandy, the Third Circuit recognized that although mere delay by an injured party in bringing suit would not bar injunctive relief, “there is that narrow class of cases where the plaintiffs delay has been so outrageous, unreasonable and inexcusable as to constitute a virtual abandonment of its right.” (citing Anheuser-Busch, Inc. v. DuBois Brewing Co., 175 F.2d 370, 374 (3d Cir.1949) (“Mere delay by the injured party in bringing suit would not bar injunctive relief. This doctrine, however, has its limits; for example, had there been a lapse of a hundred years or more, we think it highly dubious that any court of equity would grant injunctive relief against even a fraudulent infringer.”)). Implicit in a finding of laches or acquiescence is the presumption that an underlying claim for infringement existed at the time at which we begin to measure the plaintiffs delay. In Brittingham v. Jenkins, 914 F.2d 447 (4th" }, { "docid": "3090982", "title": "", "text": "1991. 1. Can laches apply as a defense to a legal action under a federal statute where Congress has abrogated the statute of limitation? A. No state statute of limitation is available. Laches is an equitable doctrine and, as a general rule, remains inapplicable to legal claims for damages. E.g., Clark v. Amoco Production Co., 794 F.2d 967, 971 (5th Cir.1986); Golotrade Shipping and Chartering, Inc. v. The Travelers Indemnity Co., 706 F.Supp. 214, 220 (S.D.N.Y.1989); D. Dobbs, Remedies § 2.3 (1973). Usually, cases brought at law are limited by statutes of limitation. However, Congress does not always provide a statute of limitations for federal claims, and federal courts often borrow analogous state statutes of limitation in these cases. Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946) (“the silence of Congress has been interpreted to mean that it is federal policy to adopt the local law of limitation.”); see e.g., 71 ALR Fed. 257 (discussing cases applying state statutes of limitations to civil actions for securities fraud under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b)). In the Sixth Circuit, as well as others, there is a strong presumption that a plaintiffs delay in bringing an action under federal law is reasonable so long as the analogous state statute of limitations period has not elapsed. Elvis Presley Enterprises v. Exclusively Yours, Inc., 936 F.2d 889, 894 (6th Cir.1991); see Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365-66 (6th Cir. 1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986) (citing cases). In the case of the statute at issue in the case at bar, however, Congress has expressly proscribed the application of a state statute of limitation to the suit for collection by enacting Pub.L. 102-26, § 3(a), 105 Stat. 124, Act of April 9, 1991, to amend 20 U.S.C. § 1091a(a). The present version of 20 U.S.C. § 1091a states in pertinent part: § 1091a. Statute of limitations (a) In general (1) It is the purpose of this subsection to ensure" }, { "docid": "134711", "title": "", "text": "defendant’s reliance on the delay by spending money to promote his own mark. See 1 Gilson, supra, § 8.12[12]. Professor McCarthy summarizes laches in even simpler terms: “Estoppel by laches = delay X prejudice.” 2 Trademarks and Unfair Competition 551, 565 (2d ed. 1984). See also Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1161 (5th Cir.1982). The issue is similar to whether a defendant should be estopped to plead the statute of limitations, Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 66 S.Ct. 582, 584-585, 90 L.Ed. 743 (1946); and there is authority (though by no means overwhelming) for reviewing findings on equitable tolling under the clearly-erroneous standard. See Mayes v. Leipziger, 729 F.2d 605, 608 n. 2 (9th Cir.1984); Sperry v. Barggren, 523 F.2d 708, 710-11 (7th Cir.1975) (semble); but see Ohio v. Peterson, Lowry, Rall, Barber & Ross, 651 F.2d 687, 693 (10th Cir.1981). The ultimate criterion of laches, as of negligence, is reasonableness in the circumstances. Clark v. Volpe, 342 F.Supp. 1324, 1328 (E.D.1972), aff’d, 461 F.2d 1266 (5th Cir.1972) (per curiam). If I am right that the determination of laches ought not be treated as a discretionary judgment of the trial court, then how has the “abuse of discretion” formulation become so entrenched? The answer seems to be historical; the phrase is a fossil of legal paleontology. “Laches,” from the Old French lasche (“lax”), originally was just a shorthand expression for the equity maxim that one who seeks the help of a court of equity must not sleep on his rights. See, e.g., Smith v. Clay, 3 Brown Ch. 646, 29 Eng.Rep. 743 (1767); 2 Pomer-oy, A Treatise on Equity Jurisprudence 169-81 (5th ed., Symons, 1941). (There is still a general equitable doctrine of laches, see 11 Wright & Miller, Federal Practice and Procedure § 2946 at pp. 417-22 (1973); I shall get to it in a moment.) Many equitable defenses were from the start used to bar legal as well as equitable relief (fraud as a defense to a claim for damages for breach of contract is an example). But laches came into" } ]